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PUBLIC LIBRARY SOltof 29 22Au'38 20 C£AlJ£fi COMMUMTT 53 APR 15 JASEG 1WAR2VS0 *>^y From the collection of the 7 n m o PreTinger i a Uibrary t P San Francisco, California 2006 • . • . , STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW Edited by the FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY NUMBER 411 GOVERNMENTAL PROBLEMS IN WILD LIFE CONSERVATION BY ROBERT H. CONNERY I > ' , I GOVERNMENTAL PROBLEMS IN WILD LIFE CONSERVATION BY EGBERT H. CONNERY, PH.D. Instructor, Department of Government Columbia University NEW YORK COLUMBIA UNIVERSITY PRESS LONDON : P. S. KING & SON, LTD. 1935 «;#«•»«*« . _, * * • • i i ^ COPYRIGHT, 1935 BY COLUMBIA UNIVERSITY PRESS PRINTED IN THE UNITED STATES OF AMERICA An 26 8531 PREFACE I HAVE been keenly conscious while preparing this volume that only a lifetime of experience in conservation work would give one an entirely satisfactory background with which to solve some of the questions that have been raised. This book is consequently little more than an introduction to the numerous problems that are faced by government agencies in the field of wild-life conservation. I can only hope that it may be of some value to administrators and others who are interested in the preservation of the nation's wild life resources. I should like to express my appreciation for the encour- agement, aid and advice that had been given me in the preparation of this study by a host of persons both inside and outside of the government service. I am especially in- debted to Professor Arthur Macmahon of Columbia Uni- versity, who has unhesitatingly given of his time and effort during the past three years, for innumerable corrections in organization and interpretation. Professors Luther Gulick, Schuyler Wallace, Philip Jes- sup, Joseph Chamberlain, Howard Lee McBain, and Arthur Burns, all of Columbia, have read the manuscript and offered invaluable suggestions. Professors Oliver Field of the University of Minnesota, Markley Frankham of the Brooklyn Law School, Patterson French of Union College, and Judge Irvine Lenroot of the United States Court of Customs Appeals, have also read portions of the manu- script and made helpful comments. 5 6 PREFACE Dr. Fred Powell of the Brookings staff has from time to time made invaluable suggestions both as to the method of approach and technique of procedure. I owe him a debt which no mere line in the preface can repay. To Dr. Lev- erett Lyon, who in his official capacity as Director of Fel- lows at the Institution, made it possible for me to obtain access to important materials in Washington, and to other members of the staff, I am under similarly deep obligation. Much of the material found in the first chapter was gathered during the summer of 1934 as a result of a study made while serving as Associate Consultant for the National Resources Board, under the direction of Mr. Charles Eliot, 2nd, the executive secretary. I should also like to express my appreciation for the assistance of my colleagues, Mr. Charles Trinkaus and Mr. William Shaughnessy, in reading proof. Limitations of space make it impossible to express my appreciation individually to the men and officers of the United States Biological Survey, Bureau of Fisheries, For- est Service, Bureau of Indian Affairs, Bureau of Reclama- tion, and the Minnesota Game and Fish Department for their generous co-operation; I take this opportunity there- fore to do so collectively. R. H. C. TABLE OF CONTENTS PACT CHAPTER I INTRODUCTION Statement of problems, methods, and limitations of study n CHAPTER II THE CHANGING PLACE OF WILD LIFE IN THE NATIONAL ECONOMY The relation of a land-planning program to wild life 15 Difficulties inherent in program 24 Constitutional methods of application 27 CHAPTER III THE SPHERE OF THE FEDERAL GOVERNMENT IN WILD LIFE CONSERVATION Essentials of federal system 31 Broad construction of constitution 32 Conservation under treaty-making power 34 Conservation under the commerce clause 38 Conservation in the territories of the United States 40 CHAPTER IV THE SPHERE OF THE STATE GOVERNMENT IN WILD LIFE CONSERVATION Legal basis of state control 53 Constitutional limitations on state control 64 How an individual acquires property in game , 72 CHAPTER V THE ORGANIZATION AND FUNCTIONS OF THE BUREAU!OF THE BIOLOGICAL SURVEY History 81 Administrative organization gi Division of biological investigations 92 7 8 CONTENTS PAGE Division of food habits 95 Division of fur resources 95 Division of game management 96 Division of land acquisition 102 Migratory waterfowl division 105 Division of administration 106 Bureau policies 113 CHAPTER VI THE ORGANIZATION AND FUNCTIONS OF THE BUREAU OF FISHERIES History. 115 Administrative organization 125 Division of scientific inquiry 125 Division of fishery industries 130 Division of fish culture . 132 The Alaska division 135 Division of law enforcement 139 Division of administration 140 Bureau policies 142 CHAPTER VII THE REORGANIZATION OF FEDERAL CONSERVATION AGENCIES Demand for reorganization 144 Minor conservation agencies 146 Principles of reorganization 158 Legislative vs. executive reorganization 163 Reorganization proposals 165 Consolidation vs. coordination 174 CHAPTER VIII THE ORGANIZATION AND FUNCTIONS OF THE STATE CONSERVATION DEPARTMENTS Organization 177 Type of power entrusted to administrative bodies 185 Statutory requirements for exercise of rule-making power. . . . 187 Financing 187 License system 190 Warden system 192 Propagation activities 198 Scientific research 200 Public shooting grounds 201 Proper functions of state department 201 CONTENTS 9 PAGE CHAPTER IX PROBLEMS OF GAME LAW ENFORCEMENT Public opinion and enforcement 205 Federal enforcement machinery 207 Enforcement in practice 208 Reform of the Federal system 213 Effectiveness of Federal enforcement 214 State enforcement procedure 215 Market hunter and fur poacher 219 Cooperation between states 222 Cooperation with Federal government 223 Enforcement as the warden sees it . 224 CHAPTER X CONCLUSION Nation committed to conservation 226 Need for integrated conservation policies 227 Defects in administrative organization 229 Legal restrictions upon conservation activities 230 Reform of enforcement procedure 231 BIBLIOGRAPHY 233 INDEX 247 CHAPTER I INTRODUCTION OUR greatness as a nation and our well-being as individ- uals are due in large measure to the natural resources of this country. Timber from the forests, iron and coal and oil from the earth's deposits have gone to build and heat our homes and develop our industries; the wild life of the woods and marshes have helped to feed and clothe us, while the rich, fertile top soil, well watered by a thousand lakes and streams, have made America one of the great agricul- tural producing nations of the world. In the period of exploration and settlement, man dealt hardily with the country's natural resources. Astounded at the seemingly inexhaustible bounties of nature, his one aim was exploitation in such a manner as to reap the largest possible rewards in the shortest possible time. Less than three centuries have passed since the march of settlement inward from the coast began, yet most of the forest cover- ing of the country has been stripped away and wild life resources have been seriously and in some cases irreparably damaged. Whether it was necessary in the period of settlement to stimulate initiative by placing relatively few limits upon the individual's use of the natural resources is an academic question. Conditions change and national policies must change to meet them. Today, the continuation of a policy of rugged individualism can only result in the harm of the many for the questionable benefit of the few. ii 12 PROBLEMS IN WILD LIFE CONSERVATION We are particularly concerned in this study with the serious decline in the quantity of wild life. The natural growth of population, the building of good roads into regions hitherto inaccessible to the hunter and fisherman, the draining of breeding areas, the improved efficiency of guns and commercial fishing apparatus, the hesitancy of the states to shorten their open seasons and to reduce their bag limits have played havoc with the wild life resources of the nation. Even to the most casual observer it has been in- creasingly evident that there must be a new deal for the wild life of America if the nation is to save even a small part of this valuable natural resource.1 What Wild Life Conservation Means: The term " con- servation " taken alone has various meanings, depending upon the particular viewpoint of the person using it. Some use it in the limited sense of protection against injury or loss and thus, in speaking of wild life conservation, mean preventing the destruction of the existing supply of wild life. To others conservation has a positive as well as a negative meaning. In their use of the term they imply increasing the present supply of wild life as well as pre- venting further destruction, for they assume that the nation will benefit by an increase. Still others, questioning the accuracy of such a general assumption, would attempt to measure the value of wild life in relation to the human activities with which it conflicts, before replenishing present stocks. For instance, in the case of fur-bearing animals, they would weigh the value of the pelt as compared with the damage the animal does to the lumbering and farming interests. 1 See Hearings on the Protection of Migratory Waterfoivl, Senate Committee on Conservation of Wild Life Resources (1932) ; Van Rise and Havemeyer, Conservation of Our Natural Resources (New York, 1933), PP- 405-13; Hornaday, William, Thirty Years War for Wild Life (Stamford, 1931). INSTRUCTION 13 In this sense, conservation does not mean merely saving all species from destruction nor haphazard efforts to increase all the existing species but rather implies selection with the result that, in some instances, conservation may even mean destruction of certain predatory species of wild life whose appetites or habits make them too expensive in relation to their contribution to the social and economic needs of the nation. Thus conservation, in its broadest sense, means wise use. ^ The writer subscribes to this latter interpretation although rnne recognizes that with the comparatively limited informa- , tion available on wild life, the decision as to its relative /. value compared with various human undertakings is difficult 1 to make. Under the circumstances he believes that all species of wild life should be protected from destruction and their quantity increased unless it can be clearly demonstrated that a particular species is destructive of property out of all pro- portion to its possible value to society. Within this limita- tion conservation as it will be used in the following study <*Vcan be taken to mean protection and increase of existing LOwild life. , Aims and Methods of Proposed Study: There is a vital ^ need for stock-taking at the present day to determine what should be the future course of wild life control policies in the United States. We have already passed beyond the stage where conservation may be left to the conscience of the individual hunter or fisherman. Now the question is whether control over wild life should be a function of the ^ state governments or of the federal government, or perhaps divided between them. If the latter alternative is chosen, then what should be the respective sphere of each govern- ment? !4 PROBLEMS IN WILD LIFE CONSERVATION It is with the aim of considering such problems that the present study in governmental problems growing out of wild life conservation is undertaken. The questions raised are governmental problems and, as such, ripe for the considera- tion of students of government as well as for the profes- sional biologist. From this point of view, the writer feels he needs offer no apologies for invading a field which at first glance appears to belong exclusively to the natural sciences. Limitations of space makes it necessary to exercise a measure of choice in deciding which of many governmental problems to discuss. Four major ones were finally chosen as especially important, (i) federal state relations, (2) legal authority of the state, (3) administrative structure, and (4) law enforcement. To these four was added a fifth, the problem of the place of wild life in the future national economy, not because it was more closely related to the rest of the study than other problems which might have been chosen, but because it has attracted so much attention within the last few months as a part of the broader movement for land planning. Through all of these questions, however, there runs a major line of consideration, forging as it does the link that binds together into a related whole what otherwise might seem a series of unconnected essays. This major problem is as follows: granted that in the future the government will control the taking of wild animals to an increasing degree, what are the most efficient methods for making its intervention effective within the limits of our constitutional system ? CHAPTER II THE CHANGING PLACE OF WILD LIFE IN THE NATIONAL ECONOMY WILD LIFE has occupied a relatively unimportant place in the national economy of the past. Since the settlement of America began over three centuries ago, the trend of our national economic policy has always been towards bringing more and more land under cultivation. Rarely has the question been raised as to the value of land when used for wild life purposes compared with its value when used for agriculture. Little attempt was ever made to measure the social and economic needs of the nation.1 It was just as- sumed that agricultural acreage should be increased and upon that assumption the government did everything in its power to open up new areas to agricultural use without giving much attention to whether there was need for such increased acreage. Now we are witnessing a reversal in national policies. The present administration in Washington is committed to a program which it calls " land planning." 2 In this chap- ter we will attempt to determine what land planning means ; what brought about this change in national policies; and what effect it will have upon the place of wild life in the future national economy. 1 See Report of the National Planning Board, Govt. Print. Office, De- cember, 1934; also Beard, Charles, The Open Door at Home (New York, 1935). 2 Wallace, Henry A., Secy, of Agriculture, "AAA Program ", New York Times, August 19, 1934, VIII, I : i ; ibid., "America Must Choose ", February 9, 1934, 1:2; Tugwell, Rexford, Under-Secy. of Agriculture, " Land Planning ", Today, January 20, 1934, p. 6. 15 !6 PROBLEMS IN WILD LIFE CONSERVATION What Land Planning Means: The term "planning" taken alone means all things to all men. To one it means plan- ning his household needs, to another his business affairs, to a third his vacation. But when applied to land, planning means the adoption of policies which will so order the future use of the land that its natural resources will be con- served and what it produces balances with consumption in terms of national and world economy. Two concepts, there- fore, are involved in land planning: one, the use of the land so as to get the most out of it considering its physical features and its relation to other land areas and, second, the use of the land in such a way that its products will answer the various needs of the nation. In other words, land plan- ning means administration of the natural resources of the nation to meet its social and economic needs. Unbalanced Production Showed the Need of Land Plan- ning: It was the latter of these two concepts; i. e., balanc- ing production to meet the economic needs of the nation that attracted attention to the need of land planning. The con- servation groups for many years had been striving to arouse public opinion to the necessity of taking steps to conserve the nation's natural resources with only moderate success. Now their program was taken over as part of a larger land plan. The depression which had affected some phases of agri- culture ever since the War spread over industry as well in the years 1929-32. In part, it was attributed to the pro- duction of more agricultural products than could be sold at a price sufficiently high to pay the farmer a fair return on the capital and labor invested in them. As a result, farm income went down, and with it the purchasing power of the farmer for industrial products. At least, this was an ex- WILD LIFE IN NATIONAL ECONOMY ^ planation for the depression advanced by administration leaders.3 The Cause of Unbalanced Production: The explanation of the cause of this maladjustment between supply and de- mand seems to lie in the fact that agricultural production was greatly stimulated in the period just preceding and dur- ing the World War by an unusual demand. During all that period from 1900 to the close of the War the fear was widely expressed that the population was outrunning the food supply.4 From the Civil War onward the breaking plow of the new settler had been turning thousands of acres of prairie land in Minnesota, the Dakotas, Nebraska, and the Pacific Northwest into fertile farms, but during that same period population was increasing by leaps and bounds. By 1900 •most of the available agricultural land had been settled but still the immigrants came by the hundreds of thousands and still population grew. It is not to be wondered at that thinking men began to fear that if population continued to grow at its then rate of increase, it would soon outdistance food supply. Conse- quently, to prevent this situation coming about, agricultural production, they thought, must be stepped up. This theory gave rise to the reclamation movement in the Far West at the expense of the federal government, to the undertaking of large-scale drainage operations by the states, to the re- organization of the agricultural extension and county-agent services, and to the establishment in many states of secon- dary schools of agriculture. 3Tugwell, Rexford, "Land Planning," Today, Jan. 20, 1934, p. 6; see also Ezekiel and Bean, Economic Bases for the A.A.A., Dept. of Agri- culture pamphlet, Dec. 1933. 4 Hill, James J., Highways of Progress (New York, 1910) is an example of the expression of that belief. jg PROBLEMS IN WILD LIFE CONSERVATION As a result of this drive much new land was opened to agricultural use which today will not produce a fair return to the farmer for the capital and labor he has expended on it. In addition to increasing the acreage under cultiva- tion, this movement has, through the research work of fed- eral and state agencies, increased the yield per acre for agricultural crops. The net result was to greatly stimulate production. Effect of Agricultural Research on Production: Not only has the acreage under cultivation increased but the yield per acre has also increased, in large measure due to the research of the United States Department of Agriculture and of various state agencies. Since 1880, for example, there has been an increase in the average production per acre of 4.3 bushels of corn, 2 bushels of wheat, 3.9 bushels of oats, and about 30 bushels of potatoes.5 The greater part of this in- crease has taken place since 1900. The increased yield is partly due to reduction of the dam- age caused by plants and animal pests. Great strides for- ward in the control of such pests have been made in the last twenty years,6 and it can be expected that the future will bring increased control of pests with a further increase in the yield. Not only has there been increased yield per acre, but ex- tensive research in animal husbandry has also resulted in a more efficient use of the grain and hay crops when fed to animals. For example, there were only 4 per cent more dairy cows in 1922-26 than in 1917-21 but probably 20 per cent more milk was produced. In other words, with the 5Wietz, B. O., The Trend Toward More Efficient Use of Land, Bulletin No. 1458, Department of Agriculture. American farms are still less productive per acre than European ones. 6 Gates, H. R., " The Weed Problem," Yearbook of the Department of Agriculture (1917), pp. 205-10. WILD LIFE IN NATIONAL ECONOMY 19 same number of acres devoted to raising feed for dairy cattle, the production in the form of dairy products was nearly 15 per cent greater.7 Advances in mechanization have led to the withdrawal of some 27,000,000 acres which formerly were needed to pro- duce the feed for approximately 9,000,000 horses and mules which since 1921 have been replaced by machinery. These acres in most part have been planted to products fit for human consumption and thus have contributed their share towards upsetting the balance between supply and demand.8 Demand for American Agricultural Products Decreased: Now turning to the demand side of the balance, consider for a moment what had been happening there. The nation witnessed a tremendous growth in population up to 1914, a growth caused partly by a high birth rate and partly by large immigration from Europe. With the opening of the Great War in Europe, immigra- tion slowed down and finally almost stopped altogether. In the years that followed the War when it would normally have recommenced, various statutes were passed by Con- gress restricting the number of immigrants allowed to enter the country each year. During the same period, that is, from 1914 onwards the birth rate at home was lower than in the period that preceded the War. If these trends in population continue, it is expected that by 1950 the American population will have become practically stationary.9 7 Nourse, E. G., " The Outlook for Agriculture," Journal of Farm Economics, January 1927. 8 Hyde, Arthur, Secretary of Agriculture, "Developing a National Policy," Proceedings of the National Conference on Land Utilisation, November 1931, p. 31. 9Olsen, Nils, Chief, Bureau of Agricultural Economics, "The Agri- cultural Outlook," Proceedings of the National Conference on Land Utilisation, November 1931, p. 5. See also Dublin, Louis, Population Problems, passim (New York, 1926). 20 PROBLEMS IN WILD LIFE CONSERVATION In addition there have been significant changes in the diet of the American people during the last three decades. People whose diet contains as large a proportion of animal food as ours did before 1900 must have a larger land area for their support than people who prefer a vegetable diet. Since 70 per cent of our crops not including pasturage is fed to animals and only 30 per cent to humans directly, a change from meats to fruits, vegetables, and cereal foods such as has taken place means that less acreage is required to meet home demands. Besides, as the tastes of the average Amer- ican have shifted to some extent from staple cereals and meats grown on American farms to sugar, tropical fruits, and oils, so to a like degree his demands have shifted from the products of American farms to those of tropical lands.10 Effect of the Loss of Foreign Markets on Demand: Ten- dencies in the foreign agricultural markets of the United States have been no less significant. The rising tide of nationalism, the desire for self-sufficiency and the clamor of agrarian groups have led to the erection of tariff barriers, the quota system and to exchange restrictions in Europe. It has been estimated that the products of fully forty million acres were formerly sold in foreign markets now closed to us.11 In addition the purchasing power of our foreign buyers has been seriously impaired by the disruption of industry resulting from the World War and more recently from the world-wide depression. The recovery of foreign markets for our agricultural products is a prospect of the distant future if indeed America will ever recover them completely. 10 Baker, O. E., " Population, Food Supply and American Agriculture," Annals of the American Academy, March 1929, vol. 142, pp. 119-33. 11 Tugwell, Rexford, Under-Secy. of Agriculture, New York Times, January 14, 1934, 8: I. WILD LIFE IN NATIONAL ECONOMY 2I Thus, on one side of the equation we have had the drive for a larger food supply continued from the pre-war period into the post-war period, a drive the full force of which was just beginning to be felt from 1920 onwards, while on the other side of the equation we have a change in popula- tion growth which in the post-war period has developed into a definite trend towards a stationary population. With the loss of foreign markets the ratio between food supply and demand at home was bound to get out of balance, while the industrial depression aggravated the situation by lessen- ing the purchasing power of the urban workers.12 As for probable agricultural land needs of the future, it is likely that population, until it becomes stationary, will need a slight annual increase in land under cultivation. On the other hand, the increase in efficiency of production is expected to continue. Therefore, the amount of acreage needed will expand very slowly, if at all, in the next few decades.13 Attempts to Restore a Balance: The only solution of the agricultural depression, as the Administration sees it, is to balance production with demand. Some attempt has been made to stimulate demand by bringing about an increase in wages of the urban workers and by negotiating reciprocity treaties with foreign nations. The chief reliance of the Administration's leaders, however, has been placed upon reducing supply, temporarily, by means of a crop-reduction program as provided for by the Agricultural Adjustment Act,14 and permanently by a shift in land use. This permanent program will result in the complete with- drawal of between fifty and one hundred million acres of 12 Ostrolenk, Bernhard, Annals of the American Academy, vol. 148, p. 207. 13 Baker, O. E., What About the Year 2000? (1929), pp. 24-26. 14 Statutes of the United States, Session Laws, 73rd Congress, ist Sess., Chap. 25. 22 PROBLEMS IN WILD LIFE CONSERVATION land from agricultural use. It is planned to devote most of this area to forestry, not only because the agricultural situa- tion is such that the acreage under cultivation must be re- duced but because forestry as a part of an integrated national resources conservation program is important in itself. Broad Forestry Program Planned: Forests, properly lo- cated, have many other values besides being a source of timber supply. The evident trend toward shorter working hours among all classes of the population points to the need of giving more attention to recreation. Forest areas in some measure can be made to supply that need.15 Nor can the possibilities of forests as a means of pre- venting floods and destructive soil erosion be overlooked. A survey recently undertaken at the request of the Presi- dent showed that large areas in certain sections of the coun- try have been adversely affected by the destruction of the forest covering as a result of the floods which followed such destruction.16 In part this situation may be remedied by a reforestation of upland areas especially those located near the headwaters of important streams. Thus from the social point of view there seem to be strong arguments in favor of reforestation. Every effort should be made, of course, to obtain as large an economic return from these forest areas as possible. Fur animals, under proper management, can be made an important supplementary source of revenue.17 The eco- 15 Report of Land Planning Committee, National Resources Board, January, 1935, Govt. Print. Office. 16 Report of the President's Waterflow Committee, September 1934; Govt. Print. Office. 17 Ashbrook, Frank, Chief, Division of Fur Resources, U. S. Biological Survey, special memorandum to Special Committee on Conservation Wild Life Resources, U. S. House of Representatives, July 6, 1934. See also, Leopold, Aldo, " Conservation Economics," Journal of Forestry, May 1934. WILD LIFE IN NATIONAL ECONOMY 23 nomic possibilities of other forms of wild life remain to be explored in detail, yet sufficient is known to conclude that some income can be derived from them. One might sug- gest in passing a revenue could be derived from a small fee charged for the privilege of hunting or fishing on forest areas owned by the government. Effect of Program upon Place of Wild Life in National Economy: The land-planning program of the Administra- tion cannot but have a stimulating effect upon wild life con- servation in America. There is every indication that wild life needs are being carefully considered and will be made part of the final program.18 At least a greater quantity of wild animals will be produced although whether a larger number remain after the hunting and fishing season will depend on the care with which game laws, especially those fixing bag limits, are drawn. Dependent, therefore, upon the game codes, the opportunity is at hand for greatly in- creasing the supply of wild life in the country. In any case wild life seems destined to occupy a more important place in the national economy. Viewed from the standpoint of providing recreation, land planning comes as a godsend to the sportsman. In recent years there has been a tendency, perhaps more emphatic in connection with game, but also readily noticeable as regards fish, towards the exclusion of the public from the more de- sirable wild life areas. Private ownership of land now frequently yields to a favored few the privileges of hunting and fishing which the country has been accustomed to view as a public right. 18 See Report of Land Planning Committee, op. cit., note also allot- ment of twenty-five million dollars by PWA for purchase of sub-marginal agricultural land to be used for wild life purposes, New York Times, January 14, 1934, i : 2. 24 PROBLEMS IN WILD LIFE CONSERVATION Land owners under trespassing laws may in most states prohibit access to their property for hunting, while exclusive clubs have leased many desirable stretches of water. Thus the casual hunter or fisherman of limited financial resources has been forced to travel further and further afield for his sport and recreation. That this condition has become men- acing in some of the more thickly populated sections, is indi- cated by the action of the state of Connecticut in leasing private streams for public fishing purposes. It can be safely assumed that this trend towards decreasing the amount of land open to the public for sport will be reversed under the new land-planning program, thus remedying a situation that threatens to become serious.19 Difficulties Inherent in Land Planning: Although the writer is in general accord with the theory of land planning, he recognizes the existence of certain difficulties inherent in the program. A frank discussion of these difficulties is perhaps the best method of proceeding to their solution. Assuming that agricultural production is to be balanced with demand, how is " demand" to be determined? Does it mean the actual quantity of agricultural products the people in the United States can consume, or does it mean the quantity the nation is economically able to buy? The reduction of crops while many people are in want is a policy that makes one pause and question. The agricultural lead- ers apparently, taking a pragmatic view, interpret " demand " merely upon the basis of the probable quantity that will sell at a price sufficiently high to pay the cost of production plus a reasonable profit for the farmer. Whether this is a satis- factory answer remains to be seen. 19 See memorandum prepared by U. S. Bureau of Fisheries for U. S. Forest Service on Fishery Management in Forest Waters of the United States, dated November 28, 1932. WILD LIFE IN NATIONAL ECONOMY 2$ The Administration, as part of its land-planning program, proposes to withdraw land from agricultural use, but what is it going to do with the individuals living on the land? Either they must be absorbed in the urban population or they must be allowed to open up new agricultural land which, of course, would defeat the program. No plan of land use can be sound until it meets and solves this problem. The third difficulty to be faced is the lack of scientific data available for land planning. A great deal of scientific information, both economic, social, and political is necessary to determine the needs of the nation and the best use of the country's physical resources. The three scientific dimensions of the land problem — physical, economic, and political — have all been explored in greater or less measure; yet even today some of its outlines are known only imperfectly. The western movement in America early gave rise to scientific inquiries into the char- acteristics of the land. The exploring expeditions, such as those of Lewis and Clark and of Pike, were scientific as well as political or military missions. To this day many of their shrewd observations are as sound as when originally made. By the middle of the nineteenth century the federal gov- ernment was engaged in elaborate inquiries into our western resources. The most ambitious of these projects were the Pacific Railroad Survey, a far-flung reconnaisance of the western half of the country. After the Civil War four sur- vey organizations were established under King, Hayden, Wheeler, and Powell to carry on the work in the West, and in 1879 they were succeeded by the United States Geological Survey. In it and in the earlier organizations were devel- oped the American beginnings of scientific geology, geog- raphy, forestry, biology, cartography, and other branches of learning. The necessity of knowing our western lands was the principal stimulus to this growth of scientific knowledge in the past century. 26 PROBLEMS IN WILD LIFE CONSERVATION The generation of pioneer investigators was succeeded by more and more specialized workers. In the course of time bureaus were set up in the federal government, each charged with the duty of gathering scientific data in some special field of activity. Their work has by no means been com- pleted at the present day although a vast amount of scientific information is available. It is most probable that our knowledge is less complete regarding wild life than it is regarding any other single physical factor. The Biological Survey, it is true, has a great deal of information in its files dealing with wild life but little of it is so organized as to be of value to the land planner. What are the approximate quantities of the various species of wild life in America? No one knows, nor has any accurate technique been developed for answering this baffling question. A few years ago the Biological Survey undertook the so-called " duck census " by requesting volun- teer observers scattered throughout the country to make reports upon the number and species of ducks observed. The results of that census were of very doubtful accuracy chiefly because few observers were found really capable of estimating the number and species of ducks seen flying over- head. Some different technique must be developed if real results are to be obtained. Food habits of wild animals are still incompletely known for all species, and for that matter for the same species in dif- ferent parts of the country, although a division of the Survey has been at work on that phase of the subject for a number of years. Ecological research still offers vast oppor- tunities to the wild-life scientist. In every field of scientific knowledge regarding the phys- ical nature of the land itself, the data available are inadequate. Limitations of space do not permit a consideration of the WILD LIFE IN NATIONAL ECONOMY 27 human aspects of the problem, the quantity and scope of the data available on population movements, or the purely eco- nomic phases of land planning. Let it suffice to say that human knowledge is far from complete in any of these fields. The federal bureaus are not themselves altogether to blame for this situation. Limitations imposed by the stat- utes and by lack of funds have many times hampered their work and prevented them from gathering the information which they should have. The point remains, however, that only twenty-six percent of the area of the United States has been adequately mapped,20 less than half of it surveyed to determine the quality of its soil, while there are great gaps in the field of knowledge regarding vegetation, climate, and wild life. This factor must be taken into consideration in planning the use of the nation's resources. Land Planning Within Constitutional Limits: Once a national land plan has been drafted, the next problem is to apply the plan and bring the actual use of the land into conformity with it. Land still owned by the government offers a fairly easy problem. Those areas in the public domain of the federal government which can be efficiently administered by existing federal agencies such as the Forest Service, the National Park Service, or the Biological Sur- vey, can be withdrawn from settlement by act of Congress 20 Estimate by chief of the Topographic Branch, U. S. Geological Survey. For more detailed discussion of the scientific aspects of the problem, see Federal Land Planning Agencies, Bulletin 2A, National Resources Board 0934) prepared by the writer; also Preliminary Report on Land Re- sources in Relation to Public Policy, Science Advisory Board (1934) ; ibid., New York Times, December 15, 1934; Bowie, William, "Survey- ing and Mapping in the United States," The Military Engineer, Septem- ber 1933, p. 386; A National Plan for American Forestry (Copeland Report) prepared by U. S. Forest Service, 73rd Congress, ist Sess., Senate Doc. 12 (1933). 2g PROBLEMS IN WILD LIFE CONSERVATION or by executive order of the President.21 The administra- tion of grazing areas has been provided for by the Taylor Act.22 Certain scattered areas located near existing state reservations might be turned over to the states by gift or sale. But some new method must be provided for the ad- ministration of remaining public domain, most of which is desert country of a type which is not administered by any existing federal agency. The problem of bringing privately owned lands into con- formity with a national land plan is a more difficult one. Three methods of control have been used in different parts of the country with a considerable measure of success. The Wisconsin state legislature in 1932 passed a law authorizing county boards to zone their respective counties as forest, recreational, and unrestricted areas, according to type of land and accessibility to existing roads and schools.23 If a county has been so zoned further settlement for year around agricultural use will not be permitted in any except unrestricted areas. This rural zoning is comparable to urban zoning which, as a method of regulation, is constitutional under the police power of the state. Zoning as a control measure for national land planning assumes, of course, co- operation by the states, for it involves a power of the state, not of the federal government. Tax abatements offers the second method of control. It is entirely possible to work out a system of taxation whereby an individual will receive rebates provided he puts his land into forestry or maintains cover helpful to wild life. It seems clear that the nation is committed in the future to the policy of repairing at public expense in so far as it is pos- sible the damage done to natural resources. In other words, the nation will have to foot the bill in case the individual 21 On power of Congress and President over public domain, note p. 45. 2248 Stat. L. 1274. 23 Wisconsin Statutes, section 59.97 (1932). WILD LIFE IN NATIONAL ECONOMY 2g misuses the portion of the natural resources committed to his care. If he cuts away the timber on his land or allows his cattle and sheep to over-graze a certain area and serious erosion occurs, national wealth is wasted and ultimately the nation pays the bill. If an individual destroys cover useful to wild life in a feeding area, the nation as a whole has lost something of value and ultimately must repair the damage done. Repair, however, is a negative policy. Prevention is cheaper and more efficient. Instead of spending money to replace cover on wild-life feeding grounds, rather pay the individual to maintain the cover in the first place. That payment can well take the form of a tax abatement. The third method is outright purchase. Under eminent domain proceedings the national and state governments are endowed with the authority to take private property for a public purpose upon payment of just compensation. This is a method that should be used with caution, for eminent domain proceedings imply sale against the will of the owner and many times cause ill feeling. In addition, eminent do- main involving as it does court action, increases the cost of the purchase. Therefore, whenever it is possible to acquire sufficient quantities of suitable land through volun- tary purchase to meet the needs of the government it should be done. The size of existing federal or state reservations may be increased or new ones created by purchasing additional areas, but the acquisition of scattered holdings not contiguous to existing reservations promptly raises the question of how the land is to be administered. For this reason the govern- ment should make no attempt to acquire all areas that are submarginal for agricultural use but only those which it has the facilities to administer for other purposes. These three methods: zoning, tax abatement, and pur- chase are the means by which a national land plan can be put into effect. The first appeals to the local community 30 PROBLEMS IN WILD LIFE CONSERVATION because zoning prevents scattered settlement with its high education and road building expenses. Reduced public ex- penditures means, of course, reduced taxation and therefore is popular with the taxpayers. It is more difficult to win public support for a reform of the tax system so as to in- duce wise land use but nevertheless worth trying. Outright purchase remains chiefly the field of the federal government because that agency at the present time is the only one with sufficient funds to finance a widespread pur- chase plan and also because the federal government's efforts towards bringing about better land use must be limited almost entirely to this method. Conclusion: Wild life is offered the best chance for in- crease at the present time that it has had in many a year. The men engaged in drafting the present land plan are fully awake to its needs and sympathetic to the idea of expanding the breeding areas. Reduction of crop areas to balance production means a shift from agricultural to recreational and timber uses. Wild life will undoubtedly be made an important secondary use in these areas throughout the coun- try.24 While it is true that due to lack of proper scientific data the program is faced with certain difficulties, notable among which is the determination of the quantity of land to be taken from agricultural use, the specific areas, and the specific uses to which it may be put, nevertheless, it can not but result in giving wild life a much more important place in the national economy than it has previously occupied. Whatever steps are taken to aid wild life conservation, however, must be made to fit into the constitutional pattern of our government system. Therefore, in the next chapters the sphere of the national government and of the states will be outlined and the work of each within their respective spheres described. 24 See Report of the Land Planning Committee, National Resources Board, December 1934, Govt. Print. Office. CHAPTER III THE SPHERE OF THE FEDERAL GOVERNMENT IN WILD LIFE CONSERVATION DURING the last half-century there has been a rapid in- crease in the conservation activities of all governmental agencies, which can be traced to two factors : first, the awakening realization of the value of wild life to the nation and, second, the knowledge that uncontrolled exploitation is rapidly depleting the existing supplies. The old theory of inexhaustibility dies hard, but the total disappearance of some species of wild life formerly plentiful and the notice- able absence of game animals in particular areas has given it a final blow.1 The Essentials of Our Federal System: This growth in conservation activities took place under our federal system of government, the essential principle of which is a division of power between the national government and the local units of government by means of a written constitution un- changeable by the ordinary process of legislation. The national government and the states are each supreme within the sphere marked out for them by the Constitution. 1 The wild pigeon is an excellent example of the total disappearance of a species. Enormous flock of wild pigeons formerly darkened! the skies in the states of the Upper Mississippi Valley, New York, and southern New England. The last great meeting in New York occurred in 1868, the last large roosting in 1875, and the last great nesting in Michigan, probably the last anywhere on the continent, in 1878. No attempt was made to protect these birds — indeed, there was little reali- zation that they needed protection until they had virtually disappeared. Palmer, T. S., Chronology and Index of American Game Protection, Bulletin 41, Biological Survey, 1912. 32 PROBLEMS IN WILD LIFE CONSERVATION The central government established by means of the United States Constitution was given certain powers essen- tial to national development, such, for example, as control of foreign and interstate commerce, foreign affairs, the coin- ing of money, and, in order to obtain the wherewithal to carry out these powers, the right to levy taxes within certain broad limits. The local units, the states, upon their part were forbidden by the constitution to invade these fields but were guaranteed possession of all remaining powers not dele- gated to the national government. This in broad outline is the basis of our constitutional system. The Delegated Powers of the National Government: Those powers given to the national government are some- times spoken of as the delegated or enumerated powers. Nowhere among the enumerated powers is found the power to make laws for the conservation of wild life as such. The President, however, is expressly given authority to make treaties " by and with the advice and consent of the Senate," 2 and Congress the power to " regulate commerce with foreign nations, among the several states, and with Indian tribes," 3 " to make all needful rules and regulations respecting the territory or other property belonging to the United States," 4 and " to lay and collect taxes ... to pay the debts and provide ... for the general welfare of the United States." 5 The Broad Construction of the Constitution: With the economic and social development of the nation and the rapid settlement of the greater part of the continent, wild life began 2 United States Constitution, art. ii, sec. 2. 8 Ibid., art. i, sec. 8. * Ibid., art. i, sec. 8; for the District of Columbia, art. i, sec. 8 but clause 17. 5 Ibid., art. i, sec. 8. SPHERE OF FEDERAL GOVERNMENT 33 to decrease in quantity. No longer was it possible to take one's gun of an evening, step out into one's own backyard, and return shortly with a haunch of venison for the next morning's breakfast. The modern shotgun replaced the flintlock, the steamboat the sailing vessel, the automobile the stagecoach, paved highways the blazed trail, and each of these changes meant that wild life, whether on sea or land, decreased in numbers the more rapidly. The need for conservation became increasingly evident, and yet adequate conservation measures depended upon action by the national government in many instances. In the field of conservation as in most other fields of activity, the difficulty has been met not by formal amend- ment of the national constitution but through a practice of broad interpretation at the hands of the courts. Under the leadership of John Marshall, powers expressly granted the national government were interpreted by the Supreme Court in such a way as to give them flexibility and, within limits, an adaptability to the changing needs of the developing nation.6 As a result the principle was definitely established that the national government had any power which might be reasonably implied from those expressly delegated to it by the constitution and which was not expressly prohibited. One might say then that the national government is limited to powers granted it by the constitution, but these powers are to be broadly interpreted as befits powers granted to a government. Every power exercised by the national government in the field of conservation, therefore, must be traced back to some authority expressly delegated to it by the constitution or which may be reasonably implied from such expressed 6 See McCidlough T>. Maryland, 4 Wheaton 473, 481 (1819), and Gibbons v. Ogden, 9 Wheaton 187, 189 (1824). 34 PROBLEMS IN WILD LIFE CONSERVATION power. It has already been pointed out that the expressed powers under which the national government carries on conservation activities are four: the power to (i) make treaties; (2) regulate interstate and foreign commerce; (3) administer the territory and other property of the United States, and (4) raise money by taxation which is to be spent for the general welfare. But one might well ask specifically: what does the national government do with regard to wild life conservation under each of these powers? Conservation Activities of the National Government under Treaty-Making Power: The conservation of animals ferae naturae on the high seas, depending as it does upon cooperation between nations through international agree- ments, is clearly outside the power of the state governments. The national government, however, under the treaty- making clause of the constitution can by means of unilateral and multilateral agreements with the governments of other nations take steps to prevent needless destruction of wild v life on the high seas. Such action has been taken to protect the fur seal fisheries on the Pacific Northwest and Alaskan coasts; the North Atlantic fisheries, and the Northern Pacific halibut fish- eries.7 The United States also entered into a treaty with 7 Fur seals see North Pacific Sealing Convention, Senate Doc. 75, 62nd Cong, ist Sess., for history of movement leading to convention see Moore, John B., Digest of International Law, vol. i, p. 900; for history of North Atlantic fisheries dispute see Dunning, Wm., The British Empire and the United States, N. Y. (1914) ; Sabine, Lorenzo, Report on the Principal Fisheries of the American Seas, included as part of the annual report of the Secretary of the Treasury (1852), and Lansing, Robert, "North Atlantic Coast Fisheries Arbitration," Journal of International Law, vol. v, p. i ; for Northern Pacific Halibut fisheries negotiation see Hearings on Northern Pacific Halibut Fishery, Committee on Merchant Marine, Radio, and Fisheries, H. R. 8084, Feb. 8, 1932, p. 18, for the convention itself see Treaty Series, No. 701, Govt. Print., statute enforcing, 43 Stat. L. 649, as amended, 47 Stat. L. 142. SPHERE OF FEDERAL GOVERNMENT 35 Mexico for the protection of fisheries off the California coast in 1926 but abrogated it a year later.8 In instances where the citizens of a number of nations are engaged in taking some species of wild life on the high seas, agreements between individual governments are not effective. A general all inclusive agreement must be ar- ranged. An example of one treaty of that type is the Baleen Whale Convention drafted under the auspices of the League of Nations, regulating the taking of the baleen whale.9 It was ratified by some half-dozen other nations as well as the United States. Protection of Migratory Birds under Treaty-Making Clause: The exercise of the treaty-making power of the national government was not questioned so long as it con- cerned the conservation of animals ferae naturae on the high seas. A new point was raised, however, by the at- temped regulation of the killing of migratory birds, that is, the game and song birds that migrate seasonally between Canada and the United States, by the national government under the treaty clause. This type of regulation was dis- tinguished from the previous ones by the fact that the ani- mals ferae naturae to whom the earlier treaties referred had been beyond the boundaries of any state while here the mi- gratory birds were found within the states which up until this time had looked upon them as entirely subject to state jurisdiction. 8 Treaty Series, No. 732. 9 On Baleen Whale Convention see article by Jessup, Philip C, " The International Protection of Whales," Journal of International Law, vol. 24, P- 75i (1930), American ratification July 7, 1932; for more general discussion of whaling see Hearings on Conservation of Whales, Senate Committee on the Conservation of Wild Life Resources, March 20, 1931, Hohman, Elmer, The American Whaleman, New York (1928) and Star- buck, Alexander, History of the American Whaling Industry, Waltham, Mass. (1878). 36 PROBLEMS IN WILD LIFE CONSERVATION Thus, a conflict was inevitable between the authority of the national government to make treaties and the authority of the states arising from two sources, first, their well- recognized right of control because of ownership of animals ferae naturae found within their borders 10 and, second, be- cause of the tenth amendment to the constitution which reserved to the states all the powers not granted in the national government. Congress had previously attempted to deal with the situa- tion by means of an ordinary statute. In March 1913 it had passed the Weeks-McLean Migratory Bird Act11 declaring migratory birds within " the custody and protection of the United States " and prohibiting their destruction contrary to regulations which the Department of Agriculture was authorized to establish. The Department proceeded to set up such regulations, and in attempting to enforce them found the constitutionality of the entire act brought into question. Two state supreme courts, Maine and Kansas.21 and two federal district courts13 during 1913-15 held the statute unconstitutional. An appeal from one of the federal de- cisions, the Shauver Case, was carried to the United States Supreme Court where it was twice argued. On the first argument before a bench of only six, there was evidently a division of opinion making a decision favorable to the act impossible, or else the case seemed sufficiently important to induce the court to order it re-argued before a full bench. 10 Cf. p. 54. 11 37 Stat. L. 847 ; in essential features same as the Shiras bill of 1904. 13 State v. Sawyer, 113 Me. 458, 94 Atl. 886 ( 1915) ; State v. McCullough, 96 Kan. 786, 153 Pac. 557 (1915). 13 United States v. Shauver, 214 Fed. 154 (1914); United States v. McCullough, 221 Fed. 288 (1915). SPHERE OF FEDERAL GOVERNMENT 37 After re-argument but before a decision had been given, the State Department 14 in 1916 concluded a treaty with Canada protecting migratory birds. The government's ap- peal from the decision of the Arkansas District Court was dismissed on the motion of the Attorney General and thus the Supreme Court never decided the Shauver case.15 In July 1918 Congress pursuant to the treaty enacted the Migratory Bird Treaty Act 16 and under it the Department of Agriculture has from time to time issued enforcing regu- lations. The constitutionality of the 1918 Act having been contested on its enforcement, five federal district courts, in- cluding that for the district of eastern Arkansas, which had held the 1913 Act unconstitutional, now uniformly held the 1918 Act constitutional.17 The Missouri v. Holland case was carried to the Supreme Court on appeal and there the Act of 1918 was held constitutional.18 Mr. Justice Holmes, who wrote the decision, gave a broad interpretation to the treaty-making power of the national government. He said that as the national government had 14 See Senator Root's resolution, 62nd Cong., 3rd Sess., S. Res. 428 and Senator McLean's resolution, 63rd Cong., ist Sess., S. R. 25. Also draft of the proposed treaty by legal department of the American Game Pro- tective Association in 1914-15. The story is current that this method of dealing with the problem was first suggested by a young solicitor in the State Department to a Justice of the Supreme Court who in turn discussed it with the President. This individual has since become an authority on International Law in one of the leading universities of the country. 15 See Professor Corwin's interesting article on this statute in 14 Mich. Law 613 (1916) in which he attempts to prove that migratory birds come under the commerce clause of the national constitution. 16 40 Stat. L. 755. 17 United States v. Thompson, 258 Fed. 257 (1919) ; United States v. Samples, 258 Fed. 479 (1919); United States v. Selkirk, 258 Fed. 775 (1919) ; United States v. Rockefeller, 260 Fed. 346 (1919) ; Missouri v. Holland, 258 Fed. 479 (1919). 18 Missouri v. Holland, 252 U. S. 416 (1919). 38 PROBLEMS IN WILD LIFE CONSERVATION definitely been delegated the power to make treaties by the constitution itself, it was not enough to urge the tenth amendment as a limitation upon it in this case. Nor was it a proper test to say that what Congress could not do by ordinary law, a treaty could not do because acts of Congress are the supreme law of the land only when made in pur- suance of the constitution, while treaties are declared to be so when made under the authority of the United States. This treaty did not contravene any prohibitory clause of the constitution. It dealt with a subject recognized by inter- national custom as a proper one for treaties. Therefore, it was valid and the law carrying it into effect was consti- tutional. Turning to the argument that the state in its sovereign capacity owned animals ferae naturae. Justice Holmes said that although the state's title stood as against the right of an individual, it could not be said to prevent the national gov- ernment from exercising its right to make treaties regulating the subject.19 Conservation of the Sponge Fisheries under the Com- merce Clause: Congress to protect the sponge industry off the coast of Florida passed an act on June 20, 1906 20 pro- hibiting the taking, curing, landing, or sale of sponges under a certain size or during specified closed seasons. In viola- tion of this act the vessel Abby Dodge gathered sponges and landed them at the port of Tarpon Springs, Florida, in Sep- 19 Held in United States v. Lumpkin, 276 Fed. 580 (1921), that the treaty plainly does not attempt to protect non-migratory birds, but the fact that there may be individual birds of the species that do not migrate does not affect the validity of the treaty nor act passed pursuant to it. Subsequent cases held that treaty was not retroactive and would not apply to birds killed before it went into effect. United States v. Fur Store Co., 262 Fed. 836 (1920) ; and United States v. Marks, 4 Fed. (2nd) 420 (1925). 20 34 Stat. L. 313. SPHERE OF FEDERAL GOVERNMENT 39 tember 1908. As a consequence the owner of the vessel was arrested and the vessel fined pursuant to the terms of the act. The case was carried to the United States Supreme Court 21 on appeal, the argument being advanced that the statute was unconstitutional because it dealt with a matter entirely within the authority of the states. Mr. Chief Jus- tice White who wrote the opinion of the Court followed the precedent established in The Lord Steamship Case 22 and ruled that although the Abby Dodge had merely sailed from an American port to gather sponges and had returned to the same port, she was engaged in foreign commerce within the meaning of the constitution provided she had gone beyond the territorial waters of the state of Florida. In exercise of its power to regulate foreign commerce, Congress, said the Court, long has had the power to forbid merchandise carried in such commerce from entering the United States. In this particular case, however, the libel did not charge that the sponges had been taken outside the state waters, and thus an important element necessary to constitute a violation of the statute was absent. Under the circumstances, the de- cision of the District Court imposing the fine was reversed, but with directions to permit the government, if desired, to amend the libel and so present the case within the statutes as constructed. In 1914 Congress passed an act superseding the statute of 1906 and although similar to it in general outlines definitely limited its operation to the Gulf of Mexico and the Straits of Florida outside of the state territorial waters.23 This statute has been in effect ever since. ai The Abby Dodge, 223 U. S. 166 (1912). 22 102 U. S. 541 (1880). 33 38 Stat. L. 692. See also early acts of Congress under authority of commerce clause regulating the fur trade; i Stat. L. 137, 329, 469; 2 Stat. L. 39, 139, 173, 289; 3 Stat. L. 332, 682; 4 Stat. L. 35, 729; 5 Stat. L. 680. For further discussion of commerce clause see p. 64. 40 PROBLEMS IN WILD LIFE CONSERVATION Wild Life Conservation in the Territories of the United States: The constitution gives Congress power " to dispose of and make all needful rules and regulations respecting the Territory and other property belonging to the United States." 24 The present territories of the United States are Alaska, Porto Rico, Hawaii, the Philippines, the District of Columbia, and certain insular possessions, notably the Canal Zone, the Virgin Islands, and Guam. All of these terri- tories are located outside the boundaries and therefore the jurisdiction of any of the states. Within these territories, Congress has entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which the legislature of a state might legislate.25 Congress may transfer the power of legis- lation in respect to local affairs to a legislature elected by the citizens of a territory and in the case of the more important territories has done so.26 Conservation of Wild Life in Alaska: Congress estab- lished an Alaskan Game Commission in 1925 composed of five members, four of whom were to be appointed by the Secretary of Agriculture and who must be residents of Alaska for five years preceding their appointment. The fifth, who acts as executive officer, is the principal representative of the Biological Survey resident in Alaska.27 Salaries are limited to a per-diem for time spent at meetings. The Commission has wide authority over the administra- tion of the game laws in Alaska. The regulation regarding open and closed seasons and methods of taking of wild 24 Article IV, section 3. 25 See Simms v. Simms, 175 U. S. 168 (1899) and United States v. McMillion, 165 U. S. 510 (1897). 26Binns v. United States, 194 U. S. 486 (1903). a7 43 Stat. L. 740. SPHERE OF FEDERAL GOVERNMENT 4I animals are prescribed by the Secretary of Agriculture acting upon recommendation of the Commission, within limits fixed by act of Congress. Thus, for instance, at no time can the Secretary allow female yearling or calf moose, doe yearling, or female mountain sheep to be taken.28 Congress has also fixed the fees for game license. The money collected under such fees is divided between the Treasury of the United States and the school fund of the territory. The expenses of administering the game laws are charged against the United States Treasury and covered by the Agricultural Appropriation Act each year.29 Congress has authorized the Secretary of Commerce to make similar regulations fixing the open and closed fishing season in various areas and making it unlawful to fish in those areas during the closed season.30 The United States Bureau of Fisheries is charged with the administration of such regulations.31 The territorial legislature is empowered, however, to fix and collect fishing license fees 32 although most of the fish- protection work is carried on by the Bureau of Fisheries under direct appropriation from the United States Treasury. The income from fishing licenses nets the territory over half a million dollars a year.33 Conservation of Wild Life in Hawaii: A territorial gov- ernment for Hawaii was established by act of Congress April 30, 1900 34 and its powers have been increased by 28 43 Stat. L. 743- 29 47 Stat. L. 1454 for fiscal year 1934. 30 43 Stat. L. 464. 31 For details, see Chapter VI. 32 37 Stat. L. 512 as amended 43 Stat. L. 467. 33 Report of the Commissioner, Bureau of Fisheries (1932), p. 521. 84 3 1 Stat. L. 144. 42 PROBLEMS IN WILD LIFE CONSERVATION subsequent acts.35 There is a governor and legislature con- sisting of two houses, the members of which are elected by the people. The power of the legislature extends to all rightful sub- jects of legislation not inconsistent with the constitution of the United States. In the absence of federal laws to the contrary, the territorial legislature has complete control over wild life found on the islands. To date, Congress has only passed one act dealing with the subject that would so restrict the power of the legislature. On April 30, 1900 it pro- vided that all fisheries in the sea waters of the territory not included in a fish pond should be free to all citizens of the United States, subject, however, to vested rights. The Attorney General of the territory was authorized to proceed by condemnation proceedings to acquire such vested rights so as to make them public fishing grounds.36 Conservation of Wild Life in Porto Rico and the Philip- pine Islands: Both the territories of Porto Rico and the Philippine Islands have territorial governments composed of an executive appointed by the President of the United States with the consent of the Senate, and a territorial legislature elected by the people. Local legislative power consistent with the constitution and laws of the United States is vested in the legislature.87 Although the powers of the legislature of Porto Rico and the Philippines are somewhat more restricted than that of Hawaii, yet the same general principle applies and in the absence of congressional act to the contrary the local legislature is vested with the control over wild life. In the case of neither Porto Rico nor the Philippines has Congress passed any laws relating to wild life. 35 31 Stat. L. 150; 36 Stat. L. 444; 42 Stat. L. 116; and 42 Stat. L. 223. 36 31 Stat. L. 160. 37 For act defining power of legislature, see 39 Stat. L. 958 for Porto Rico and 39 Stat. L. 547 for the Philippines. SPHERE OF FEDERAL GOVERNMENT 43 Conservation of Wild Life in the District of Columbia: For the greater part of its history the government of the District of Columbia has been that of an unorganized terri- tory or dependency, but for a brief period, 1871-74, it was that of an organized territory. The power of Congress is essentially the same as regards the District of Columbia and territory acquired by treaty, but the source of this power is found in a separate section of the constitution. By clause 17 of section 8, Article I, Congress is given specific plenary authority " to exercise exclusive legislation in all cases what- soever over such District ... as may . . . become the seat of government." Under this plenary power granted to it, Congress may set up such form of government for the District as it sees fit. It may establish a municipal government elected by popular vote, as was done from 1801 to 1871 ; it may create a terri- torial government, such as existed from 1871 to 1874; or it may place some local powers of government in a municipal corporation whose officers are appointed by the President and some of the powers in the hands of federal agencies as at present.38 The municipal government is headed by three commis- sioners appointed by the President with the consent of the Senate,39 whose powers are similar to those customarily exercised by the commissioners under the commission form of municipal government. Congress, however, retains the powers commonly held by the state legislature including the power to make laws regarding wild life. On July 14, 1932 Congress passed an act40 prohibiting the killing of wild animals in the District of Columbia. So 88 For more detailed discussion of the government of the District, see Schmeckebier, Laurence, The District of Columbia, Institute for Gov- ernment Research publication (1928). 39 20 Stat. L. 102. *° 47 Stat. L. 660 amending and amplifying 34 Stat. L. 808. 44 PROBLEMS IN WILD LIFE CONSERVATION that at the present time the entire District is a wild bird and game refuge. Conservation of Wild Life in the Insular Dependencies: The remaining territory of the United States outside of state boundaries comprising the Canal Zone, the Virgin Islands, Guam, and Samoa, might be compared to the British Crown Colonies. They are each ruled by a Governor appointed by the President with the consent of the Senate. There are no representative assemblies of a legislative nature although in the case of the Virgin Islands the Governor is aided by the advice of a colonial council.41 Congress has not legislated on the subject of wild life in these territories but the governors are authorized to make regulations that have the force of law upon local subjects which includes wild-life conservation. Conservation of Wild Life on " other property of the United States": The authority of the United States over land owned by it but located within state boundaries is based likewise upon Article I, section 8 of the constitution which states : " The Congress shall have power to dispose of and to make all needful rules and regulations respecting the territory and other property belonging to the United States." In this section the power to dispose of lands belonging to the United States is broadly conferred upon Congress and it is under the power thus granted that the homestead acts for the settlement of the public domain have been enacted. The full scope of this clause has never been definitely settled. It has been commonly held, however, that the national gov- ernment may deal with public lands " precisely as an indi- vidual citizen may deal with his farming property. It may sell them or withhold them from sale. It may grant them 41 U. S. Code, Title 48, chaps. 6, 7, 9- SPHERE OF FEDERAL GOVERNMENT 45 in aid of railways or other public enterprises. It may open them to preemption or homestead settlement. . . ." 42 Whether the principle of state ownership of wild game extends to public lands of the United States depends upon the act admitting the state to the Union, which may except such lands from state sovereignty, as in the case of certain Indian reservations in Kansas.43 In the absence of such exception the constitutional rule of state equality would apply and the state would have sovereignty over all lands within her boundaries.4* The same situation arises when the state by act of its legislature expressly waives its sovereign rights and allows the national government complete juris- diction over land purchased within its borders for reserva- tion purposes.45 Notwithstanding the principle that the state owns all wild game while it remains within her borders, Congress may withdraw public lands from sale 46 and set them aside as national parks, forests, or bird reservations, closing them to all forms of hunting without consulting the state concerned. In addition, it has often authorized the President to do like- wise by executive order.47 Indeed, upon the grounds of long-continued custom, the courts have upheld the Presi- 42 Camfield v. United States, 167 U. S. 521 (1896) ; see also Butte City Water Co. v. Baker, 196 U. S. 126 (1904) ; and Light v. United States, 220 U. S. 523 (1911). 43 Cited in Ward v. Race Horse, 163 U. S. 504 (1896) at p. 519. See also Montana Const. Ordinance No. i, division 2d. 44 Ibid. 45 United States Constitution, art. i, sec. 8. 46 Ibid. 47 Act of Congress, June 8, 1906, authorizing the President to withdraw such lands from sale as found necessary to establish a monument reserve embracing the Grand Canyon of the Colorado held valid in Cameron v. United States, 252 U. S. 450 (1920). 46 PROBLEMS IN WILD LIFE CONSERVATION dent's right to withdraw lands upon his own initiative and by his own authority.48 On the other hand, the national government may destroy game during the season closed by state law if such game is found to be damaging property on public lands. The United States Supreme Court in Hunt v. United States 49 upheld the right of the Secretary of Agriculture to order the killing of a surplus of deer, which were seriously injuring the young trees in the Kaibab National Forest in Arizona, notwith- standing the state game law which provided for a closed season on deer. The Court based its decision solely on the grounds that the national government had the right to take such steps as necessary to protect its property, the only limi- tation being, in this case, that the carcasses of the deer taken out of the forest reservation must be plainly marked to show that they had been killed thereon. But in the absence of congressional act or executive order setting aside an area of public land for some special purpose, state game laws apply unless such area was specifically ex- cepted from all state jurisdiction in the act of admittance. Thus in the national forests which have not been closed to hunting by act of Congress or by executive order, state game seasons apply. Conservation of Wild Life on Indian Reservations: The phrase of the commerce clause giving Congress power to regulate commerce with the Indian tribes sets Indian reser- vations in a class by themselves. Indians as persons are wards of the United States, whose actions to a varying de- gree are regulated by acts of Congress. Thus, the status of the individual as well as the status of the land must be con- sidered in determining the extent of federal control.50 48 United States v. Midwest Oil Co., 236 U. S. 459 (1914). 49 278U. S. 96 (1928). 50 United States v. Kagama, 118 U. S. 374 (1886). SPHERE OF FEDERAL GOVERNMENT 47 By an act of June 2, 1924 51 all Indians born within the territorial limits of the United States, not before granted citizenship, were declared to be citizens of the United States. The act did not, however, alter in any way the control of the Bureau of Indian Affairs over the tribal and individual property of the Indian ; nor did it change the laws that apply to the person of the Indian. Thus, the unallotted Indian living on a reservation is still not subject to state laws, and is subject to those of the United States only for certain specified offenses.52 State game laws extend to Indian reservations located in states where the United States at the time of the creating the state did not reserve to itself complete jurisdiction,53 and neither Indian nor non-Indian may take game legally in violation of them. Indians, nevertheless, may violate state game laws while on the reservation with immunity because of their particular relation to the national government as its wards, which protects them from arrest by state officers. However, the moment game taken in violation of a state game law by an Indian passes to a non-Indian by gift or sale, it becomes liable to seizure by state officers.54 A different situation arises when the reservation has been excepted from state sovereignty in the act admitting the state to the Union as in the instance of some of the states west of the Mississippi.55 In such case the state game laws stop at the boundary of the reservation and apply neither to Indians nor non-Indians on the reservation.56 51 43 Stat. L. 253. 52 State v. Big Sheep, 75 Mont. 335, 243 Pac. 1067 (1926). 53 Applies to states east of the Mississippi chiefly. See State v. Campbell, 53 Minn. 354, 55 N. W. 553 (1893). 54 Selkirk v. Stephens, 72 Minn. 335, 75 N. W. 386 (1898). 55 Kansas Indians, 5 Wall, 737 (1867) ; Hollister v. United States, 145 Fed. 773 (1906). 56 Lang ford v. Montheith, 102 U. S. 145 (1880) ; State v. Big Sheep, 75 Mont. 335, 245 Pac. 1067 (1926). 48 PROBLEMS IN WILD LIFE CONSERVATION The federal government, of course, may make game laws specifically for Indian reservations but has not done so to date. It is still an open question whether federal game laws and the Migratory Bird Treaty Act in particular apply to Indian reservations when they do not upon their face so state. It is held by the Solicitor of the Department of Agri- culture, acting in behalf of the Biological Survey, that they do apply. A test case is at the present time being brought in the federal District Court for Oregon charging a viola- tion of the Migratory Bird Treaty Act by an Indian on a reservation excepted from state jurisdiction. Once an Indian leaves the reservation he becomes subject to the ordinary laws of the state just as any other person 57 even though his absence from the reservation be only tem- porary. Should he hunt or fish while off the reservation he may be punished with the same penalties as a white man. The reason for this inconsistency is found in long-continued custom most probably arising from the need of the early settlers for protection.58 Federal Conservation Activities under the General W el- jar e Clause: Under article I, section 8 of the United States constitution, Congress is authorized " to lay and collect taxes, duties, imposts and excise, to pay the debts and pro- vide for the ... general welfare of the United States." It has commonly been held 59 that the general welfare clause is not in itself a grant of power but merely a limitation upon the taxing power; thus such taxes as are raised must be used for the common defense and general welfare of the United States. Yet inversely money which is raised by taxa- tion may be used for what Congress determines to be the "7M re Wolf, 27 Fed. 606 (1886). 58 State v. Big Sheep, supra, note 56. w See Binns v. United States, 194 U. S. 486 (1903). SPHERE OF FEDERAL GOVERNMENT 49 general welfare, provided always that no other section of the constitution is violated by such expenditures. As a general rule, Congress under this clause has under- taken to stimulate state activities in various fields, either by direct grants of funds to state agencies dependent upon the fulfillment of certain conditions regarding their expenditure, or by establishing federal agencies with trained personnel whose services would be available to the states upon a co- operative basis or entirely gratis. In so far as wild-life conservation goes, Congress has taken the latter method, that of providing federal agencies whose personnel would work in cooperation with state con- servation departments. Specifically, agencies have been established dealing with three distinct types of problems: (i) control of predatory animals and rodents, (2) fish, and to some extent, game propagation, and (3) research. The Biological Survey undertakes to control the predatory animal and rodent situation through a part of its organiza- tion known as the Division of Game Management. As a rule, the states themselves or groups of individuals within the states are expected to meet part of the cost of operation within each area. In fact, the expenses have in the past been divided between the federal government and cooper- ating groups upon the basis of 33 per cent to 66 per cent. The work of the Survey in this field and others will be dis- cussed at length in a later chapter. The maintenance of fish hatcheries by the Bureau of Fish- eries and of migratory bird and big game refuges by the Biological Survey constitutes another activity of the national government. From time to time the fish-propagation activi- ties of the federal government are attacked on the ground that they are an invasion of the sphere of the states. A closer examination of the type of work being done by the national government must lead one to the conclusion that the charge is rarely true. 50 PROBLEMS IN WILD LIFE CONSERVATION In the first place, a large part of the fish spawn are des- tined for the deep-sea fisheries which are within the federal sphere. In the fiscal year 1932, for example, 78 per cent of the output of the federal hatcheries were marine or deep-sea species.60 Of the remainder a good part are placed in inter- state waters where they may benefit a number of states. That field, although not so exclusively a federal one, certainly should not be closed to federal activities. This leaves only the inland fish propagation work. This at first glance is entirely a state sphere, yet a good part of the inland fish raised in federal hatcheries are used to stock national property located inland, such as national parks, national forests, Indian reservations, and impounded waters on reclamation projects. Research in wild-life problems is carried on by most of the divisions in both the Biological Survey and the Bureau of Fisheries. The results of this research is made available to state agencies. It is common, too, for the states to re- quest the loan of trained personnel from the federal gov- ernment to solve particularly difficult problems facing them. In the matter of research, much is to be said in favor of a broad federal program. Scientific research demands career experts because results are generally obtained only with a high degree of specialization. The average state wild life department cannot afford to maintain a large staff of scien- tists whose work may only be of occasional practical value to that particular state. The Sphere of the Federal Government in Wild-Life Conservation: At first glance it would seem that the whole problem of the proper division of power between the Fed- eral government and the states in the field of conservation 60 Report of the Commissioner, Bureau of Fisheries, p. 533 (1932). SPHERE OF FEDERAL GOVERNMENT $i could be avoided by turning the entire subject over to one or the other. But after more mature thought it becomes evident that the states cannot, and the Federal government should not be intrusted with the task of wild-life conserva- tion alone. The states cannot handle the whole problem themselves because conservation work on the high sea and in the terri- tories outside the boundaries of any state is completely be- yond their jurisdiction. Only the Federal government can be responsible for wild life in these areas. Clearly, too, the Federal government must continue to bear the primary re- sponsibility for conservation measures on Federal property, parks, and forests. Constitutional and legal obstacles on the other hand stand in the way of making the Federal government solely re- sponsible for wild-life conservation throughout the United States. It would, for example, be necessary to amend the constitution and add a provision delegating control over all wild animals to the national government. In view of the lack of a universal demand for an amendment of that nature, it would be a long and difficult task to make such a change. In addition, from a purely administrative point of view, it would be most unwise. Turning over all conservation activities to the Federal government would necessitate a uniform game code and the creation of a nation-wide war- den force of from five to eight thousand men. One might conclude from the dismal failure of the attempt to enforce the National Prohibition Act that such a game code would be extremely unpopular as well as unenforceable. Thus any advantages that might accrue through simplification from vesting complete control over conservation in the Federal government would be far outweighed by the practical dis- advantages of such a system. 52 PROBLEMS IN WILD LIFE CONSERVATION Consequently, one can only reach the conclusion that there must continue to be a division of responsibility between the Federal and state governments. However, when one goes a step further, and attempts to define the sphere of each, he is faced with an extremely difficult matter. Even the familiar administrative canon dividing regulatory and pro- motional functions cannot be strictly followed as a line of demarcation between the Federal government and the states in conservation activities. The work of the Federal gov- ernment should be chiefly promotional, but it must enter the field of regulation to protect the states against shipment of game in interstate commerce contrary to state law. It must also enter the regulatory field to fix minimum standards in relation to migratory game and especially game birds. On the other hand, though the state must bear the chief burden of the regulatory work, it should supplement the promotional work of the Federal government by building fish hatcheries, establishing game preserves, and educating public opinion to the value of wild life. In all these enter- prises the Federal government should continue, as it does at the present time, to supply stimulation and advice. CHAPTER IV THE SPHERE OF THE STATE GOVERNMENT IN WILD-LIFE CONSERVATION IMPORTANT as have been the powers exercised by the national government over wild life, the powers of the state governments are of still greater importance. Our federal system, as has already been pointed out,1 permits the national government to exercise only such powers as have been dele- gated it by the United States constitution, while the states are constituted the depository of all remaining powers, not expressly forbidden them by the constitution. The authority of the national government over wild life has arisen not from any power expressly delegated to it by the constitution but rather incidental to the exercise of other delegated powers. Because of that fact, it therefore remains to the state governments, within certain limits, to exert the chief control over wild life in the continental area of the United States. The Legal Basis of State Control: The authority of the state government over animals ferae naturae 2 is founded upon two legal principles; the first is known as the " police 1 Supra, p. 31. 2 Animals ferae naturae includes both fish and game, the meaning of which varies from state to state. In general " game " means birds and beasts of a wild nature obtained by fowling and hunting ; " fish " in its broadest sense, is a designation of any aquatic animal. See Grate v. McKee, 258 Fed. 335 (1919) ; Meul v. The People, 198 111. 258, 64 N. E. 1106 (1902). 53 54 PROBLEMS IN WILD LIFE CONSERVATION power," i. e. the power to legislate for the health, safety, and morality of its inhabitants, and the second, the principle that the state owns animals ferae naturae found within its borders in its sovereign capacity.3 These two principles are distinct and separate, for in Geer v. Connecticut 4 the United States Supreme Court said : 5 Aside from the authority of the state, derived from the com- mon ownership of game and the trust for the benefit of its people which the state exercises in relation thereto, there is an- other view of the power of the state in regard to property in game, which is equally conclusive. The right to preserve game flows from the undoubted existence in the state of a police power to that end. The existence in the state of a police power to conserve animals ferae naturae by regulating their taking is so widely accepted that it hardly needs further discussion. The United States and individual state constitutions, however, do hedge that authority around with certain restrictions, which will be discussed later.6 The Principle of State Ownership of Animals ferae naturae: The first clear-cut definition of the ownership theory as distinct from the police power is found in the Geer Case. The various state courts that refer to it prior to that time do so in such a manner as to confuse the authority arising out of the police power with that arising from owner- 3 Geer v. Connecticut, 161 U. S. 519, (1896) ; State v. Rodman, 58 Minn. 393, 59 N. W. 1098 (1894) ; State v. McCullough, 96 Kan. 786 (1915) ; Chambers v. Church, 14 R. I. 398 (1884). * 161 U. S. 519, 16 S. Ct. 600 (1896). 5 Ibid., at p. 534. The court later in Lacoste v. Dept. of Conservation,, 263 U. S. 545 (1920) cited the above case for the twofold basis of the state's authority. 6 Infra, p. 64. SPHERE OF STATE GOVERNMENT 55 ship.7 For example, the Minnesota Supreme Court in State v. Rodman? two years before the Geer Case, said : We take it to be the correct doctrine in this country that ownership of wild animals, so far as they are capable of owner- ship, is in the state, not as proprietor, but in its sovereign capacity, as the representative, and for the benefit, of all its people in common. The preservation of such animals as are adapted to consumption as food, or to any other useful purpose, is a matter of public interest ; and it is within the police power of the state, as the representative of the people in their united sovereignty, to enact such laws as will best preserve such game . . . The cases decided by the United States Supreme Court regarding animals ferae naturae prior to the Geer Case might be distinguished on the grounds that they involved an essentially different principle. McCready v. Virginia 9 con- cerned the taking of oysters from the tide waters of Vir- ginia. The court following the precedent of Martin v. IVadell,10 which held that the ownership of the land under water from the low-water mark to the three-mile limit had passed from the English crown to the states when the colo- nies declared their independence, ruled that the state, there- fore, owned the animals ferae naturae living in those waters. The Geer Case, however, involved wild animals living on land not owned by the state and thus was essentially dif- ferent. The rule applied in the McCready Case would not necessarily apply in the Geer Case. 7 The first mention of the ownership theory in American cases that the writer has found occurred in Magner v. The People, 97 111. 320 (1881). 858 Minn. 393, 59 N. W. 1098 (1894). 9 94 U. S. 395 (1876) ; Manchester v. Massachusetts, 139 U. S. 240; ii Sup. Ct. 559 (1890) regarding the power of the state to regulate the taking of fish within the bays of Massachusetts, could be distinguished on similar grounds. 10 1 6 Peters 367 (1842). 56 PROBLEMS IN WILD LIFE CONSERVATION The facts in the Geer Case were these: a Connecticut statute forbade the possession of game birds at any time, no matter whether taken during the open season under license or not, provided that they had been acquired for the purpose of transporting them from the state. Geer, as the law per- mitted, had bought some game birds from a person who pre- sumably had taken them legally. The sole question before the court was whether the state of Connecticut had the power to regulate the killing of game within her borders so as to confine its use to the limits of the state, and forbid its transportation outside of the state. As part of that major question the point was raised whether the game had become an article of interstate commerce, thus whether the state law forbidding its export placed a burden on interstate commerce contrary to the commerce clause of the national constitution. The United States Supreme Court speaking through Jus- tice White held that the state owned wild animals in its sovereign capacity for the benefit of all its people. The individual might legally take game, said the court, only upon such conditions as the state chose to impose. In this case the qualification prohibiting the game from becoming an article of external commerce, entered into and formed a part of every transaction. Thus at no time did the game become an article of interstate commerce within the meaning of the commerce clause. Justice White, who wrote the decision,11 attempted to show that the governing power in all countries has had the well-recognized right to regulate the taking of animals ferae naturae for the common good, i. e. under the police power. Not until he reaches the discussion of the English common law does he introduce the idea of ownership by the sovereign power, stating, 11 Justices Field and Harlan dissented while Justices Brewer and Peckham not having heard the case took no part in the decision. SPHERE OF STATE GOVERNMENT 57 The common law of England also based property in game upon the principle of common ownership and therefore treated it as subject to governmental authority. Justice White goes on to say, Undoubtedly this attribute of government to control the taking of animals ferae naturae which was thus recognized and en- forced by the common law of England, was vested in the colonial governments, where not denied by their charters or in conflict with grants of royal prerogative. It is also certain that the power which the colonies thus possessed passed to the States with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the federal government by the constitution. He points out that while the state took the place of the English government with relation to the exercise of he police power, so the state took the place of the English king with relation to ownership of wild game and fish. Thus the two- fold doctrine upon which rests the state's authority over animals ferae naturae developed. Blackstone' s Interpretation of the Common Law: Justice White's reliance upon Blackstone's interpretation of the common law is no doubt responsible for the theory that the king, as sovereign, owned game animals, for he quotes Blackstone as follows : There still remains another species of prerogative property, . . . the property of such animals ferae naturae as are known by the denomination of " game " with the right of pursuing, taking, and destroying them, which is vested in the king alone, and from him derived to such of his subjects as have received grants of a chase, a park, a free warren, or a free fishery . . . At another point in his Commentaries, Blackstone elab- orates upon the ownership theory, stating that animals ferae 58 PROBLEMS IN WILD LIFE CONSERVATION naturae, notwithstanding the general introduction of prop- erty, still remained in common but,12 ... as disturbances and quarrels would arise among individ- uals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of the dissension by vesting the things themselves in the sover- eign of the state, or else in his representative appointed and authorized by him, usually the lord of the manor. Supporting his view with what appears to be a reasonable explanation, Blackstone says that the king had exclusive right to take wild game because he was,13 ... the ultimate proprietor of all lands in the kingdom they being held to him as the chief lord . . . and therefore he had the right to universal soil, to enter thereon, and to chase and take such creatures at his pleasure : as also upon another maxim of the common law . . . that these animals are bona vacantia, and having no former owner, belong to the king by his prerogative. As therefore the former reason was held to vest in the king a right to pursue and take them anywhere ; the latter was supposed to give the king and such as he should authorize a sole and ex- clusive right. Blackstone' s Interpretation Questioned: Edward Chris- tian 14 first challenged the historical accuracy of Blackstone's interpretation of the common, law in his Treatise on the Game Laws published in 1817. The evidence which he pro- duced at that time and the research of modern historians, 12 2 Blackstone 14. Justice White does not quote this particular passage but the decision implies acceptance of Blackstone's theory of royal ownership. 13 Ibid., p. 415. The author realizes that so far as the federal courts are concerned, the interpretation of the English common law as set forth in Geer v. Connecticut is binding. See Rope, Herbert, The English Common Laiv in the United States, 24 Harvard Law 6 (1910). 14 Legal writer of early ipth century. SPHERE OF STATE GOVERNMENT 59 notably of Sir William Holdsworth,15 leaves scarcely any room for doubt that Blackstone erred in his explanation. Christian contended if all wild game, no matter where found, belonged to the king under the common law, then why should swans be singled out and declared royal birds? He especially cites the Case of the Swans,1* in which Justice Coke declares, The swan is a royal fowl ; and all those the property whereof is not known, do belong to the king by his prerogative ; and so whales and sturgeons are royal fish, and belong to the king by his prerogative . . . and when the property of a swan can not be known, the same being by nature a fowl royal, doth belong to the king . . . And the king may grant wild swans unmarked. Holdsworth traced the theory of royal ownership to Brae- ton 17 from whom Blackstone drew it, but says,18 There is no reason to think that this [wild game, the property of the crown] was ever the law of England. The king may, it is true, have claimed that he was the owner of all wild animals, just as he may have claimed to be owner of all mines; but just as his claims over mines came to be limited to mines of a special kind, so his claims to wild animals came to be limited to a few varieties such as swans and whales ; and even in these cases his rights were subject to all sorts of limitations. The Royal Prerogative of Afforesting Land: The Nor- man kings had claimed and exercised the prerogative of 15 Professor of English Law, Oxford University. This view has the support of other commentators, see comments of Judges Coleridge, Chitty, and Bell in footnotes, Blackstone (Sharwood's ed.), Philadelphia (1867), P. 4io. 16 7 Coke 16, 77 Eng. Rep. 435 (1585). 17 See also Maitland's commentary in " Bracton and Azo," p. 103, Seldon Society Papers. 18 Hold worth, Wm., History of the English Law, London (1925), vol. vii, p. 491. 60 PROBLEMS IN WILD LIFE CONSERVATION making royal forests at their pleasure of the lands of their subjects, within which game was protected under severe penalties. Yet the first Forest Charter 19 extorted from Henry I in 1217 disafforested all lands but demesne woods,20 implying that the afforestation had been an abuse of the prerogative. Later when Henry became of age he afforested certain lands which were made the subject for complaint in 1260. In 1277, 1298 and again in 1300 there were exten- sive disafforestations and the forests that were left remained stationary in size during the next three centuries.21 By the beginning of the sixteenth century the prerogative of afforestating the land of subjects had so far fallen into disuse that when Henry VIII wished to afforest the land around Hampton Court, he obtained statutory authority and provided compensation for the tenants of the land.22 Thus the king's right to afforest land came to be limited under the common law, like his rights over mines, to the demesne hold.23 Nor did the making of forests mean that the king ever claimed anything more than qualified property in the game found therein, which merely meant that he had the exclu- sive right to take the wild game while it remained in the forest. The forest law protected wild game only while it remained within forest bounds, and similarly it gave addi- tional protection to landowners holding grants from the king authorizing them to establish free warrens on their demesne lands.24 19 Harrington, Boyd, The Magna Charta and Other Charters, Phila- delphia (1900). 20 Exception in case 6f certain addition made to ancient Saxon forests called " purlieus " which were open to hunting to persons who owned land therein. Christian, op. cit., p. 31. 31 Holdsworth, op. cit., vol. i, p. 102. 22 Ibid., p. 102. ™ Ibid., p. 152. 24 Ibid., p. 101 ; Christian, op. cit., p. 58. SPHERE OF STATE GOVERNMENT 6l The royal grants to a private individual created an estate separate and distinct from the land which did not pass with the land upon assignment. Therefore it might happen that the right to take the so-called beasts of the warren would be held by one person to the exclusion of the owner of the soil.25 This was called ratione privilegii, a right which is valid today if any of the old franchise still exists.28 Since the rise of the common law, the king's property in animals ferae naturae, with the exception of swans, stur- geon, and whales, was essentially no different than that of any other landowner. He could afforest his demesne lands at will but if he afforested others, he must buy the right from the landowners. The only difference lay in the fact that game in his forests was given additional protection by a special code, known as the Forest Law, a protection which he extended to certain favored landowners for their parks and warrens in varying degree by means of the special franchises. The King had Qualified Property in Game Within the Forests: Once the wild game had left the royal forest the king's property in it was lost. A famous case cited by Keil- way and copied by Manwood 27 well illustrates this point. The case was an action for trespass against a forester who entered on private lands adjoining a royal forest for the purpose of driving back four deer which had escaped there- from. The court in its decision drew a distinction between ownership in tame animals and wild ones, holding that deer being animals ferae naturae, the kind had property in them only so long as they remained in the forest. But neither the 25 Duke of Devonshire v. Lodge, 7 B. & C. 35 (1827). 26 Holdsworth, op. cit., vol. vii, p. 492. 27 Manwood, John, Treatise and Discourse of the Laws of the Forrest, London (1598), p. 202. Manwood refers to this case but does not cite it other than to Keilway. 62 PROBLEMS IN WILD LIFE CONSERVATION crown nor anyone else had possession or full ownership of the animals therein until they were captured or killed. The king's right was merely to take game within the area of the forest. It was what Coke later called " qualified prop- erty." 28 This principle was no different in the case of the holder of a special franchise and the ordinary landowner. He could,29 . . . only claim the beasts as his, that is in possession, if they were too young to move themselves from his land. Even if a beast strayed from the forest, the king lost his qualified property in it and a fortiori this happened in the case of lesser persons. The only modification admitted was in the case where the owner of the land or franchise started a beast on his own land and killed it on the land of another. In that case the beast was his. As the forest law decayed 30 with the development of the common law, the sporting rights of the land owners ceased to be protected by their grants of park or warren and they turned to Parliament for aid. The result was the game laws,31 which limited the right to take wild animals, defined as game, to owners of land of a specified value, confirmed their rights and gave them additional protection just as in the early Middle Ages the franchises of chase and warren had given them additional protection of a similar sort.32 This change from the forest law to the game laws came gradually over a period of several centuries. 28 Case of the Swans, 7 Coke 16, 77 Eng. Rep. 435 (1585). 29 Holdsworth, op. cit., vol. vii, p. 493. 30 Began to weaken during ijth century and by 1700 would appear forests valued more for timber than for sport. By 1830 last of the official forest posts were abolished. 31 Called " qualification acts," first passed in 1389. 33 Holdsworth, op. cit., vol. vii, p. 493. SPHERE OF STATE GOVERNMENT 63 The Modern English View of Property in Game: The case of Blades v. Higgs,33 decided by the House of Lords in 1865 exhaustively considered the whole question of ownership in animals ferae naturae and has come to be regarded as the ruling English case on the subject. To that court the sole question seemed to be whether the English law followed the Roman rule, as expressed by Justinian, that wild animals become the property of the person reducing them to possession no matter where that reduction had taken place,34 or whether the landowner because of his ownership of the soil has an exclusive right to the wild animals found upon it or flying over it. In deciding that the latter rule was the correct interpre- tation of the common law the House of Lords cited a long line of English cases as precedents.35 The theory of exclu- sive royal ownership does not appear to have been consid- ered in the case at all. The right of Parliament to legislate regarding the taking of wild game is of course recognized but it seems to be assumed by the court that the game laws were for the purpose of protecting the rights of the land- owners. Thus it seems clear that under the English common law the king did not own all the game and fish in the kingdom and that Blackstone erred in his interpretation of the com- mon law. Justice White in accepting Blackstone, likewise fell into the same error. The Effect of the Doctrine of State Ownership: The major result of this error has been to enable the states to 38 ii H. L. C. 621, ii Eng. Rep. 1474 (1865). 3* Bk. 41, Til. 1-2, De Adgulr Rer. Dom. 35 The Coneys Case, Godbolt 122, 78 Eng. Rep. 75 (1590); Case of Boulston, Cro. Eliz. 547, 5 Co. Rep. 105 (1583) ; Churchward v. Studdy, 14 East 249 (1811); Earl of Lonsdale v. Rigg, ii Exc. 654 (1856); Sutton v. Moody, I Lord Raymond 250 (1697). 64 PROBLEMS IN WILD LIFE CONSERVATION allow their own citizens the right to take certain species of wild game and fish to the exclusion of citizens from other state, which, but for the doctrine of state ownership, would be contrary to the " privileges and immunities clause " of the United States constitution.38 No Change in the Law Since the Geer Case: Later decisions of the United States Supreme Court have not reversed the Geer Case. The decision in Patsone v. Penn- sylvania 37 can best be interpreted keeping in mind the ownership theory, although Justice Holmes who wrote the decision avoids direct mention of it. Likewise in Missouri v. Holland.™ Mr. Justice Holmes only mentions the theory to point out that its action is limited to regulation between the state and the individual rather than the state and the national government. However in LaCoste v. Department of Conservation 89 Justice Butler makes the ownership theory one of the major grounds for the decision. These references taken together with the numerous state supreme court decisions leaves no doubt that the ownership theory is still considered valid al- though with the broadening of the interpretation of the police powers of the state there is not as much need for it as formerly. Limitations Imposed by the Commerce Clause upon State Control: There remains for consideration the limitations imposed upon state control by the United States constitu- tion. One of the most important sections of that document is the commerce clause, which states that, " The Congress shall have power ... to regulate commerce with foreign 36 Art. iv, sec. I. " 232 U. S. 138 (1914). 38 252 U. S. 416 (1919). 89 263 U. S. 545 (1920). SPHERE OF STATE GOVERNMENT 65 nations and among the several states and with the Indian tribes." 40 Prior to the case of Geer v. Connecticut 41 there had been a conflict in the decisions of the state courts in its application to the shipment of wild game. They were agreed upon the validity of state statutes prohibiting the exportation or im- portation of illegally killed game, but were in disagreement regarding legally killed game. The question was considered from two different angles, first, whether a state could pro- hibit the exportation of game legally killed in the state dur- ing the open season; and second, whether a state could prohibit the importation during the closed season of game legally taken during the open season in some other state. The Supreme Courts of Kansas and Idaho 42 held that a state prohibition of the export of game legally killed within the state to another state to be a violation of the commerce clause, while the Supreme Courts of Minnesota, Arkansas, and Connecticut 43 ruled the opposite upon the same point. The question was finally settled when the case of State v. Geer44 was appealed to the United States Supreme Court. In its decision the court said : 45 It is indeed true that in certain cases it was held that a state law prohibiting the shipment outside of the state of game killed therein violated the interstate commerce clause of the constitu- tion of the United States, but the reasoning which controlled the decision in those cases is, we think inconclusive, from the 40 United States Constitution, art. i, sec. 8. 41 161 U. S. 519, 1 6 S. Ct. 600 (1896). 42 State v. Saunders, 19 Kan. 127 (1877); Territory v. Evans, 2 Id. 658 (1890). 43 State v. Rodman, 58 Minn. 393 (1894) ; Organ v. State, 56 Ark. 267 (1892) ; State v. Geer, 61 Conn. 144 (1891). 44 61 Conn. 144 (1891). 45 Geer v. Connecticut, 161 U. S. 519, 16 S. Ct. 600 (1896). 66 PROBLEMS IN WILD LIFE CONSERVATION fact that it did not consider the fundamental distinction between qualified ownership in game and the perfect nature of owner- ship in other property, and thus overlooked the authority of the state over property in game killed within its confines, and the consequent power of the state to follow such property into what- ever hands it might pass with the conditions and restrictions deemed necessary for the public interest. ********* The sole consequence of the provision forbidding the trans- portation of game, killed within the state, beyond the state, is to confine the use of such game to those who own it, the people of that state. The proposition that the state may not forbid carrying it beyond her limits involves, therefore, the contention that a state cannot allow its own people the enjoyment of the benefits of the property belonging to them in common, without at the same time permitting the citizens of other states to par- ticipate in that which they do not own. ********* The power of a state to protect by adequate police regulations its people against the adulteration of articles of food (upheld in Plumley v. Mass., 155 U. S. 461) although in doing so com- merce might be remotely affected, necessarily carries with it the existence of a like power to preserve a food supply which belongs in common to all the people of the state, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the state and subject to such conditions as it may deem best to impose for the public good. Upon the second question, whether a state could prohibit the importation during the closed season of game legally taken during the open season in some other state, the state courts fortunately were in agreement. The Supreme Court of Missouri in State v. Heger 46 pointed out that in the Geer case, the United States Supreme Court had based its de- 46 194 Mo. 707, 93 S. W. 252 (1906). SPHERE OF STATE GOVERNMENT 67 cision partly upon the point that as the state conditioned the acquiring of property in game upon the understanding that it should not be exported from the state, it could never be- come an article of commerce in the real sense of the word.47 Logically then if the state wherein the game was killed had not attached such a qualification, the game did become an article of commerce and a state could not prohibit its impor- tation. Congress alone could enact such a prohibition, and had done so by the Lacy Act of ipoo.48 The matter was therefore settled. This act of Congress declared that the dead bodies of game animals shipped into a state should upon their arrival within its borders be subjected to the operation of its laws in the same manner as though the animals had been killed in the state. It was similar to the act 49 placing liquor ship- ments under the state's police power which was upheld in In re Rahrer.50 The United States Supreme Court has held valid a sever- ance tax placed by the legislature of Louisiana in 1920, upon all hides, skins, and furs of animals killed within the state, denying that it placed a burden on interstate com- merce.51 The court stressed the point that the tax was levied on all skins taken in the state, no distinction being made between those manufactured in the state and those shipped out. The fact that the greater portion happened to be shipped in interstate commerce did not affect the result. 47 The Illinois Supreme Court used similar reasoning when this same point was raised at an earlier date in the Magner Case, see 97 111. 320 (1881) holding that game illegally taken in Kansas and exported from that state never became an article of commerce in the real sense of the word, and therefore Illinois might prohibit its importation. 48 3 1 Stat. L. 1039. « 26 Stat. L. 313. 50 140 U. S. 545, ii S. Ct. 865 (1891). s*Lacoste v. Dept. of Conservation, 263 U. S. 545 (1920). 68 PROBLEMS IN WILD LIFE CONSERVATION However, another Louisiana statute of 1926 requiring that the head and hull of all shrimp caught in the state be removed before being shipped out was held invalid as im- posing such a burden.52 Geer v. Connecticut 53 was distin- guished on the grounds that the purpose of the Connecticut statute was to keep wild game exclusively for the use of its citizens by forbidding shipment out of the state, while the Louisiana statute did not require any part of the shrimp to be kept in the state. After the head and hull had been sep- arated, either part could be shipped at will in interstate com- merce in unlimited quantities. Clearly the purpose of the act, said the court, was to require the canning industry to locate its plants in the state and, therefore, it was invalid as imposing a burden upon interstate commerce. If a general rule could be drawn from these decisions, it would seem to be that a state may not interfere with interstate commerce unless for the purpose of keeping the wild animals within the state for the benefit of the people of the state. Limitations Imposed by Privileges and Immunities Clause upon State Control: The clause of the United States con- stitution providing that,54 " The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," has not proved to be a major check on the state's power of control because of the doctrine that prop- erty in wild animals by right is limited, in each case, to the citizens of the state in which they are found. The United States Supreme Court likened this ownership to that of public domain, saying : 55 52 Foster-Fountain Packing Co. v. Hay del, 278 U. S. i (1928). 53 161 U. S. 519, 16 S. Ct. 600 (1896). 54 Art. iv, sec. i. 55McCready v. Virginia, 94 U. S. 395 (1876). SPHERE OF STATE GOVERNMENT 69 We think we may safely hold that the citizens of one state are not invested by this clause of the constitution with any interest in the common property of the citizens of another state. If Virginia had by law provided for the sale of its once vast public domain and a division of the proceeds among its own people no one would contend that the citizens of other states had a con- stitutional right to the enjoyment of this privilege of Virginia citizenship. . . . And as all concede that a state may grant to one of its citizens the exclusive use of part of the common property, the conclusion would seem to follow, that it might by appropriate legislation confine the use of the whole to its own people alone. Limitation Imposed by the Equal Protection of the Laws Clause upon State Control: Numerous discriminatory laws regarding hunting and fishing have been passed by the states in favor of their own citizens and upheld on the basis of the doctrine above quoted. A law discriminating between citizens of the state, however, may be a violation of the constitutional clause guaranteeing to all persons within the jurisdiction of a state equal protection of the laws.56 This clause does not prevent a state from closing certain areas to hunting, nor from forbidding the killing of certain species, but the state may not grant to the inhabitants of one county the exclusive right to take game within the county to the exclusion of other residents of the state nor upon more favorable terms.57 The Florida Supreme Court speaking of this matter in State v. Bryan 58 said : The Legislature in protecting game may in its discretion limit a statute in the extent and purpose of its operation, but the 56 I4th amendment, sec. i. 57 A state may provide lesser fees while hunting within the county of residence, but such a reduction must apply to all counties within the state. 5*87Fla. 56, 99 So. 327 (1924). 70 PROBLEMS IN WILD LIFE CONSERVATION regulation must operate upon all persons alike under practically similar conditions and circumstances . . . when a statute de- signed for the protection of game by its plain terms excludes from its benefits a portion of the residents of the state, or im- poses upon some residents burdens not put upon other residents with reference to the subject regulated and there appears to be no real difference in conditions to fairly justify the classification as made, the statute may in effect deny to residents of the state equal protection of the laws. As against a classification of resident and non-resident, equal protection of the law has rarely been successfully in- voked. Although an act of the legislature of Arkansas for- bidding a non-resident, even though owning land in the state, to hunt or fish at any time and allowing a resident such privileges was held a denial of equal protection by the Supreme Court of that state. As the case 59 stands as a solitary exception it might be well to consider it in detail. The bench was divided and the minority justices presented an able dissent. The opinion of the majority was based upon the theory that a landowner's right to take game found on his land was a property right. Therefore, a statute pre- venting a non-resident from exercising that right was a de- nial of equal protection of the law between landowners. The court considered the Geer case and distinguished it on the grounds that, It is not the fact that the appellee is excluded from enjoyment of the common right of the citizen to fish and hunt because of his non-residence that he may complain, but of the exclusion by reason of his non-residence from such special right which he enjoys in common with other landowners. The minority contended that the right to take game found on one's land holds as between one individual and another 59 State v. Mallory, 73 Ark. 236, 83 S. W. 955 (1904). SPHERE OF STATE GOVERNMENT ji but that it does not constitute a right as against the para- mount authority of the state. They might also have well argued that the statute did not take away a property right. The property consisted of the " exclusive right to take wild game " found on a certain piece of land. That right re- mained; true the appellee could not use that right himself because he was not otherwise qualified, but it still had value and still remained vested in him. He could sell or lease the right to any qualified person. It was never the theory in England where the principle first arose, that the right to take game because of ownership of the land vested in the individual.60 The same situation arose there and was met by allowing the landowner to lease the right to take game to any qualified person. If the majority opinion were sound, then with equal force it might be contended that a foreign corporation owning land in the state could not be subjected to any requirement to which a domestic corporation was not subject. Obviously the court confused the property right with the individual right whereas they should be considered separately. The statutes which are the most often challenged are those which either entirely forbid aliens to hunt or require them to pay a higher license fee than do other residents. The courts have uniformly upheld such a classification as consti- tutional.61 Consequently should the state forbid aliens to hunt it may, under the police power, go a step further and forbid them to own guns used in hunting.62 The constitutional limitations imposed upon the state by its own constitution vary greatly from one state to another and will not be discussed in detail here. It is sufficient to say that the courts have tended to interpret them in such a 60 Christian, Edward, Treatise, op. cit., p. 116. 61 Patsone v. Pennsylvania, 232 U. S. 138 (1914). «2 Ibid. 72 PROBLEMS IN WILD LIFE CONSERVATION manner as to leave the states a wide latitude of discretion in control over wild animals. How an Individual Acquires Property in Animals ferae naturae: There are three manner of rights of property that is, property absolute, property qualified, and property possessory. A man hath not absolute property in anything that is ferae naturae but in those which are domitae naturae. Property qualified and pos- sessory a man may have in those which are ferae naturae ; and to such property a man may attain in two ways, by industry or ratione impotentiae et loci; by industry as by making them domesticae but in those which are ferae naturae, and by indus- try made tame, as man hath but a qualified property in them, scil. so long as they remain tame for if they do attain to their natural liberty . . . the property is lost . . . ratione impotentiae et loci; as if a man has young shoveler or goshawks which are ferae naturae and they build on my land, I have possessory property in them, for if one takes them when they can not fly the owner of the soil shall have an action for trespass . . . It is thus that Coke classifies property in wild animals,63 and his statement that a person may obtain qualified prop- erty by capturing an animal usually wild and confining it in captivity, seems to apply with equal force in modern Amer- ican law today.64 The determination of which animals are usually wild has proved to be a knotty legal problem.65 The distinction is of great importance 66 because property in domesticated animals continues wherever they may stray, 63 Case of the Swans, 7 Coke 15, 77 Eng. R. 435 (1585). ^Dieterich v. Fargo, 194 N. Y. 359, 87 N. E. 518 (1909). 65 Kent in his Commentaries points out the difficulty of drawing the line between animals naturally wild and those which have been domes- ticated. 2 Kent 348. 66 Especially in view of the rapidly increasing amount of capital in- vested in fur farms both in the United States and Alaska. SPHERE OF STATE GOVERNMENT 73 while property in wild animals, temporarily confined, is lost when they escape from confinement.67 The Romans considered animals by nature divided into two classes, those naturally wild and those naturally tame.68 Whether an animal fell into one class or another was deter- mined by an arbitrary classification. In England 69 and the United States with the development of the theory that all animals had once been wild, the determination of when an animal ceased to be wild and could be classed as domesti- cated came to be considered a question of fact for the jury. Thus in the case of Morgan v. Earl of Abergavenny™ in- volving a herd of deer which had been enclosed for a long term of years, fed by game keepers and when fat sold for food, an English court said, Upon the question whether deer are tamed and reclaimed, each case must depend upon the particular facts of it; and in this case, the Court thinks the facts were such as were proper to be submitted to the jury . . . The jury held them to be tame deer. The same conclu- sion regarding a herd of deer raised under similar con- ditions was reached by an American court in Dieterich v. Fargo.71 Even in the case of wild animals which have escaped from confinement, property continues in them provided it 67 James v. Wood, 82 Maine 173, 19 Atl. 160 (1889). 68 Institutes of Justinian, Bk. II, tit. I, s. 15, 16. 69 It is possible that there was a time when the only animals in which property was recognized were those which were useful for draught or food. As late as 1521 it was argued that no property could exist in tamed animals, such as dogs, cats, or song birds, the only use of which was to give pleasure to their owners. Case of the Dogs, Y. B. 12 Hy. VII, Trin. pi. 3. 708 C. B. 768, 137 Eng. R. 710 (1849). 71 194 N. Y. 359, 87 N. E. 518 (1909). 74 PROBLEMS IN WILD LIFE CONSERVATION can be shown that they have become sufficiently tame so that they will return of their own accord.72 This is an ex- ception to the general rule. Of course there is conisderable difficulty in determining whether such intention to return exists. Even then should a group of wild animals of a menagerie escape from their owner's immediate possession, and to all appearances give no intention of returning, his property in them continues while they are within a reasonable distance. But a sea lion escaping from a pool near New York City to the Atlantic Ocean and caught seventy miles distant therefrom was con- sidered as having regained his freedom.73 It was not neces- sary, said the court, that he return all the way to his native haunts in the Pacific. At its best the principle is vague. The most that can be said of it, is that the courts have tended to hold that wild animals long confined, upon escaping from actual posesssion but remaining in the near neighborhood are still the prop- erty of their former possessor. Right of the Landowner to Wild Animals Found on His Land: To the two methods of acquiring qualified property in animals ferae naturae as listed by Coke may be added two others. Thus the English courts 74 speak of qualified property existing ratione soli and ratione privilegii. The latter term pertains to hunting rights as estates created dis- tinct from the land by ancient franchise of the king.75 Under these old franchises it is still possible for an indi- vidual in England to hold the exclusive hunting rights over another's land.76 72 James v. Wood, 82 Me. 173, 19 Atl. 160 (1889). ™Mullett v. Bradley, 24 Misc. 659, 53 N. Y. S. 781 (1898). 7* Blades v. Higgs, op. cit., p. 1478. 75 See p. 61. 76 Duke of Devonshire v. Lodge, 7 B. & C. 39 (1827), p. 39. SPHERE OF STATE GOVERNMENT 75 Property ratione soli as interpreted by the English courts 77 means no more than the exclusive right to catch or kill animals ferae naturae by reason of ownership of the soil upon which they are found. In England it is a right pos- sessed by every landowner unless his land, as in rare cases, falls in the class to which the hunting rights were granted away by royal franchise in the centuries past. As soon as this right is exercised, the animals so killed become the abso- lute property of the owner of the soil. Granting that such exclusive right exists in England, suppose a person enters upon land not his own and killing game reduces it to possession, does he thus acquire absolute property in it notwithstanding the rights of the landowner? 78 The English courts answer in the negative,79 laying down the principle that reduction to possession must not be by means of a wrongful act, for 80 ... it would be unreasonable to hold that the act of the tres- passer, that is of a wrong doer, should divest the owner of the soil of his qualified property in the game and give the wrong doer an absolute right of property to the exclusion of the right- ful owner. But in game, when killed and taken, there is abso- lute property in some one, and therefore the property in game found and taken by a trespasser on the land of A must vest either in A, or the trespasser, and if it is unreasonable to hold that the property vests in the trespasser, it must of necessity be vested in A, the owner of the soil. Whether in the United States the landowner similarly has qualified property in animals ferae naturae valid not 77 Blades v. Higgs, op. cit., p. 1478. 78 See interesting discussion on subject in Justice of the Peace, vol. 26, p. 467 (1862). 79 Note that this rule differs from the Roman law under which re- duction to possession gives absolute property no matter where it takes place. Justinian, Inst. Lib. 2, C. i, sec. 12. 80 Blades v. Higgs, op. cit., p. 1479. 76 PROBLEMS IN WILD LIFE CONSERVATION against the state, but against another individual in the ab- sence of a statute to the contrary, is a difficult point to determine. There are few federal cases directly to point. In Gratz v. McKee 81 the plaintiff sued to recover the value of certain muscles taken from the bed of a non-navigable stream, the bed of which by the rule in that state was owned by him. The United States Circuit Court of Appeals for the eighth circuit upheld his contention, saying,82 Under the common law as it has existed, and still exists in England, and in general as transmitted to the States of the Union, modified by statutory enactment and supplemented by usage, the owner of the soil would have a qualified, but sub- stantial property interest in the fish and game upon his own land, with the exclusive right to reduce it to possession superior to that of others, and subject only to regulation by the state as a sovereign and under its police power. The argument advanced by the defendant that the state's ownership of wild animals precluded any action by the plain- tiff, the court refused to accept as material in this case, ruling that statutes declaring title to game and fish to be in the state spoke only in aid of the state's power of regulation and left the plaintiff's interest as against another individual what it was before. The United States Supreme Court,83 speaking through Justice Holmes, upheld the decision of the circuit court but distinguished between muscles and those fish and birds which can move freely from place to place. The court avoided saying that the landowner had qualified property in the latter animals, contenting itself with the statement that at least he had so far as muscles are concerned and may sue to recover their value. 81 270 Fed. 713 (1921). 82 For contrary view, see Cooley on Torts, p. 323 (1932 ed.). 83 McKee v. Gratz, 260 U. S. 127 (1922). SPHERE OF STATE GOVERNMENT jj Landowner's Rights to Wild Animals Found on Land Covered by Water: Whether qualified property exists in wild animals and fish found on lands covered by water and in the water itself is a somewhat more difficult problem. It is the general rule, to which there are exceptions, that ownership of the soil under water carries with it the exclu- sive right to hunt and fish in or upon that water.8* Equally general and with an equal number of exceptions is the rule that abutting riparian owners on a non-navigable stream own the bed to the middle of the thread,85 while on a navi- gable stream only to high-water mark.86 However, as the United States Supreme Court said,87 It is presumed that title to the soil under navigable waters within a state is in the state itself but the nature and rights of the state and of abutting riparian owners in navigable waters within the state and to the soil beneath are matters of local law to be determined by statute and judicial decisions of the state. Even in the matter of determining navigability the states have set up varying tests. In determining whether a stream or lake is navigable within the meaning of the constitutional principle of equality among the several states under which the title to the bed of navigable waters passes to each state upon its admission to the Union, the federal rule is fol- 84 Illinois, Schulte v. Warren, 218 111. 108, 75 N. E. 783 (1905) ; New York, Brook haven v. Strong, 60 N. Y. 56 (1875) ; Pennsylvania, Com. v. Foster, 36 Pa. Super. 433 (1908) ; Michigan, Lincoln v. Davis, 53 Mich. 375, 19 N. W. 103 (1884). 85 Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 21 L. ed. 133 (1872). 86 Massachusetts v. New York, 271 U. S. 65 (1925) ; United States v. Holt State Bank, 270 U. S. 49 (1924) ; in a few states to low water mark, Virginia, Greenleaf Johnson Lumber Co. v. United States, 204 Fed. 489 (1913). 87 United States v. Holt State Bank, 270 U. S. 49, 46 S. Ct. 197 (1924). 78 PROBLEMS IN WILD LIFE CONSERVATION lowed.88 The Supreme Court in the Daniel Ball case, re- jected the English doctrine on navigable waters, saying,89 The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. . . . Those rivers must be regarded as public navigable rivers in law which are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. This is the federal rule and the common test of navi- gability,90 but in some states the courts have given a broader meaning to the term, as did Judge Mitchell for Minnesota, when he said,91 Many, if not most of the meandered lakes of this state are not adapted to, and probably will never be used to any great extent for commercial navigation; . . . however, we are satis- fied that, so long as these lakes are capable of use for boating, even for pleasure, they are navigable, within the reason and spirit of the common law rule. Under whatever rule adopted, navigability under the common law, modified in some states by statute or constitu- tion, usually determines the ownership of the land under water and that ownership determines the extent of the right to take fish and wild fowl found in the waters above.92 When land owned in fee simple, however, is suddenly s*Fox River Co. v. RR. Commers. of Wis., 274 U. S. 651 (1926). «9 10 Wall. 557 (1871). 90 See also, Rowe v. Granite Bridge Corp., 21 Pick (Mass.) 344 (1838) ; Mutler v. Gallagher, ig Or. 375, 24 Pac. 250 (1890) ; Burroughs v. Whitman, 59 Mich. 279, 26 N. W. 491 (1886). 91 Lamprey v. State, 52 Minn. 180, 53 N. W. 1139 (1893). **McCready v. Virginia, 94 U. S. 395 (1876). SPHERE OF STATE GOVERNMENT jg flooded, the public have only the right of passage on the waters above it, provided they are navigable, but not the right of fowling and fishing thereon.93 Absolute Property in Wild Animals: Absolute property is acquired only when an ^dividual obtains possession of a wild animal in such a manner as to conform with the law.94 Pursuit or the starting of an animal is not possession; it is obtained only when the animal is killed or mortally wounded. Until such time it is considered at large and anyone may legally, however lacking in good sportsmanship it may be, enter upon the chase and by killing the animal obtain pos- session.95 On the other hand, once a person has obtained absolute property in a wild animal by killing it and marking the body in accordance with custom, he retains property in it although it may escape from his immediate possession. Thus Ghen had killed a whale off the north Atlantic coast with a marked bomb lance but the dead body had escaped from his posses- sion. It was picked up by Rich who claimed that as he found the body it was " game escaped from possession " and therefore at large. The court ruled that Ghen had done all he could to mark the body as his property. He used the method common on the fishing coast and which was therefore valid. Reasonable salvage was allowed but that was all.96 Extent of State Control under Police Power: The state may under police power regulate the use to which property S3 S chute v. Warren, 218 111. 108, 75 N. E. 783 (1905) ; Sterling v. Jackson, 69 Mich. 488, 37 N. W. 845 (1888). 94 Persons killing animals ferae naturae in violation of law acquire no title thereby, Manning v. Miclierson, 69 Ga. 447 (1882) ; Linden v. McCormick, 90 Minn. 337 (1905). **Pierson v. Post, 3 Caines (N. Y.) 175 (1805). ™Ghen v. Rich, 8 Feb. 159 (1881). So PROBLEMS IN WILD LIFE CONSERVATION in game and fish is put just as it may regulate the use of all other property within its borders for the health and safety of its citizens. For example, a state law forbidding posses- sion after the end of the closed season of any kind of game, including that imported into the state, was upheld in New York ex rel. Silz v. Hesterburg,97 on the grounds that, ". . . dealers in game may sell birds of the domestic kind under claim that they were taken in another country." The same reasoning has been used to uphold the state's control over domesticated animals which although of the same species as those usually wild, have been raised in cap- tivity and are the property of the raiser.98 Thus in aid of the state's control over animals ferae naturae reasonable regulation of those reduced to possession and of domesti- cated animals of the same species is allowed. Conclusion: The state, subject to the limitations imposed by the United States constitution, has broad powers to regu- late the taking of animals ferae naturae. This authority flows from the existence in the state of the police power and from the theory that the state, in its sovereign capac- ity, owns wild animals found within its borders. In the exercise of its control of the wild animals, it may make reasonable regulations concerning the breeding, taking, or possession of tame ainmals. Turning now from the legal and constitutional aspects of the study, some attention will be given to the administrative structure which has been designed to make state and national regulation effective. In the next three chapters the organ- ization and functions of the principal bureaus of the national government dealing with wild life will be considered, fol- lowed by an examination of the state agencies. 9? 211 U. S. 31 (1908). 98 Dieterich v. Fargo, 194 N. Y. 359, 87 N. E. 518 (1909). CHAPTER V THE ORGANIZATION AND FUNCTIONS OF THE BUREAU OF THE BIOLOGICAL SURVEY THE fundamental problem facing the Biological Survey is not the control of predatory animals but the control of predatory men. Wild animals are a natural resource of the nation which may, in the long run, be as vital to its balanced development as its mineral resources. Like other natural resources, wild life is liable to be exploited for the benefit of the " few " notwithstanding the rights of the " many." The true function of the Biological Survey in broad out- lines is the protection of the wild game and fur animals as a natural resource in which the whole nation has certain rights. How well the Biological Survey has carried out its true functions can only be determined by a consideration of its history as an organization, its present-day activities, its administrative organization, its relation to other federal bureaus and to the states, and the problems of policy that face it today. That is what this chapter sets out to do. The Beginnings of the Biological Survey: 1 The Survey had its beginnings in the American Ornithologists' Union which was formally organized in New York City on Sep- tember 26, 1883, thus becoming the first national associa- tion of ornithologists in the United States. At the first congress held during the three days following its organiza- 1 For detailed history of the Biological Survey, see thorough and well- written study by Cameron, Jenks, The Bureau of the Biological Survey (1929), Institute for Government Research, Monograph Series. 81 82 PROBLEMS IN WILD LIFE CONSERVATION tion, three committees were appointed to study bird life. One committee undertook to study the distribution of the various species of North American birds ; another, the Eng- lish sparrow; and a third, bird migrations. This last com- mittee in the course of its work requested the cooperation of ornithologists and observers the country over, asking that they report via questionnaires upon the bird life ob- served by them. The response to this appeal was so overwhelming that at the second congress of the Union held the following year, the chairman of the committee, Dr. C. Hart Merriam, re- ported financial aid must be secured if the work was to continue. The council of the Union turned to the national government, urging that the dissemination of the knowledge obtained from ornithology would be a valuable addition to the agricultural program of the nation. Without great difficulty, the council, largely through the aid of Senator Warren Miller of New York 2 and Spencer Baird of the Smithsonian,3 was able to secure an appropriation of $5,000 available July i, 1885.* The new work was placed under the direction of the Division of Entomology in the Department of Agriculture although the ornithologists would like to have seen it set up as a separate division. The council of the Union at the re- quest of the Commissioner of Agriculture, recommended Dr. Merriam for the post of director, and he was accord- ingly appointed. Thus the organization which in time was to become the Bureau of the Biological Survey got under way. 2 See speech in support of, by Senator Warren Miller, Congressional Record, Feb. 20, 1885, p. 1937. 3 See Merriam, C. Hart, " Baird the Naturalist," Scientific Monthly, June 1924, vol. v, no. 28, p. 588. * Act of March 3, 1885, 23 Stat. L. 353, 354. BUREAU OF THE BIOLOGICAL SURVEY 83 In 1886, that is, one year after it was originally started, the work was set up as the Division of Economic Ornithol- ogy and Mammalogy in the Department of Agriculture.5 What might be called a survey of wild life became the most important feature of its work, although it was ten years before its name was changed to " Division of the Biological Survey." 6 The title was again changed in 1906 when the Bureau of the Biological Survey was set up as an independ- ent unit in the Department of Agriculture.7 There had been protests from the first that the Biological Survey was spending too much of its time in the study of geographic distribution of the species and not giving enough attention to the practical questions relating to agriculture and horticulture. The same problem had faced Dr. Mer- riam and his associates in beginning their work that has usually faced the directors of any new governmental organization.8 Should they use the limited funds granted them to lay the basic foundations which might later produce practical results or should they jump ahead and by hit-and- miss methods get some sort of immediate results so as to convince the members of Congress that their work was of value? Dr. Merriam chose to use the first appropriations made the Survey for what he considered basic scientific studies. Perhaps it was because the Union was composed largely of scientists and that Merriam himself was more interested in the scientific aspects of the work than in any other. Un- fortunately, the chief point urged before the House and Senate appropriation committees had been the practical value 5 24 Stat. L. 100. « 29 Stat. L. 99. 7 33 Stat. L. 861. 8 See discussion of similar situation in The Geological Survey, Mono- graph No. i, Institute for Government Research, p. u. 84 PROBLEMS IN WILD LIFE CONSERVATION of a study of bird life to agriculture. The original act of 1885 9 had specified that the sum of $5,000 was appropriated for the purpose of ". . . investigation of the food habits, distribution, and migrations of North American birds and mammals in relation to agriculture, horticulture, and for- estry. . . ." The exact wording of the appropriation act had changed from time to time but the idea remained fixed that the Sur- vey was to carry on investigations in wild life that would be of practical value to agriculture. Finally, matters came to a head in 1907 when Dr. Merriam was challenged by the House Committee on Agriculture to show the practical value, if any, of the work of the Survey to the agricultural in- terests of the nation.10 His answer in the form of a comprehensive report which attempted to justify the Survey's work appeared several months later. Therein its economic features were stressed and it was argued that the study of geographic distribution was but a necessary ground work which must be laid before effective practical work could be done. Said the report : " " Without accurate and comprehensive knowledge of the various species, of the areas they inhabit, and of their rela- tive abundance . . . satisfactory economic studies of birds and mammals would be impossible." However justified the emphasis on scientific studies may have been, Dr. Merriam read the handwriting on the wall and from that day onward was always careful to stress its practical value to agriculture. Indeed, as the years went by that phase of the Survey's work increased of its own volition to a great extent. » 23 Stat. L. 353. 10 59th Cong., 2nd Sess., H. R. 8147, pp. 38, 39. 11 6oth Cong., S. Doc. 132. BUREAU OF THE BIOLOGICAL SURVEY 85 Survey Enters Control Work: The Survey from the first days of its existence had occasionally made studies bearing upon the relation of mammals to agriculture and grazing but not until the nineties did it come into active contact with the depredations of predatory animals. The increasing amount of damage which such animals caused the western cattle herds forced state legislatures to turn their attention to rinding means of control. At first, various bounty sys- tems were tried and the states as they came to frame their bounty laws turned for advice to the Biological Survey, which in a sense became a clearing house for information. But it was not long before the states came to realize that the bounty system was too small an effort to cope with such a serious situation. Meanwhile, the Survey in 1905 at the request of the Forest Service had agreed to make a study of the wolf problem on the grazing areas within the national forests. The results of this investigation were published in 1907 by both services. During the next few years the Bureau con- ducted a number of such investigations. When the failure of the bounty system was recognized the pressure became increasingly strong for the Survey to enter the field in a more active way. Finally, in 1914 Congress appropriated a small sum to the Survey for experiments and demonstra- tions in control methods.12 About this same time the demands of the farmers for protection against various rodents which preyed upon their crops forced the Survey to turn its attention to rodent con- trol measures. Starting in 1909 13 as a small addition to the " food habits research " clause in the annual appropria- tion act for the specific purpose of making experiments in destroying noxious rodents, the appropriation has increased "38 Stat. L. 434. is 35 Stat L. 1051. 86 PROBLEMS IN WILD LIFE CONSERVATION in size until- for the fiscal year 1934 the sum of $575,780 was made available by the federal government for the preda- tory animal and rodent-control work of the Survey.1* Although the emphasis of the Survey's work was shifted from scientific to the practical economic in 1906-07, scientific studies have been continued since that date. Indeed, the studies in geographical distribution of wild life form the basis for most of the practical work of the Survey. For example, during recent years they have proved to be of great value in fixing the location of migratory bird refuge, for as a result of these studies the Survey knows where various species of wild life are to be found. With the view to making enforcement of the state game laws easier and of preventing the importation of foreign species which might, like the English sparrow, prove un- desirable, Congress in 1900 passed the Lacy Act15 that forbade the shipment in interstate commerce of game or game birds which had been taken illegally in a state or terri- tory or which were shipped in violation of state non-export laws and the importation of foreign species except under permit of the Secretary of Agriculture. The enforcement of the act was delegated by the Secretary to the Bureau of the Biological Survey although of necessity, due to the small amount appropriated in the years immediately following the passage of the Lacy Act, the enforcement consisted chiefly of cooperation with the states. Nevertheless this was the first important regulatory work which was assigned to the Survey, and it was destined to be followed by other acts of the same type. In 1918 the so- called Migratory Bird Treaty Act,16 and again in 1929 the Migratory Bird Conservation Act,17 together with the vari- i*47 Stat. L. 1454. 15 31 Stat. L. 187 as amended in 1909, 35 Stat. L. 1137. 16 40 Stat. L. 755. 1T 45 Stat. L. 1222. BUREAU OF THE BIOLOGICAL SURVEY 87 ous acts setting aside specific areas as refuges, added fur- ther regulatory duties to the Survey's activities. One phase of the Survey's present-day activity remains to be considered historically and that is the work in the preserving and the breeding of desirable species of wild life. The reclamation movement which swept the country at the opening of the century was indirectly responsible. A large number of the lakes and marshes where migratory birds nested were reclaimed during that period. Then there came a series of dry years in the West which dried up other areas used by wild fowl. The result was the overcrowding of the remaining areas which, in turn, bred disease that had a truly disastrous effect in reducing the numbers of game birds. Ironically, it was later discovered that much of the land reclaimed was of little value for either farming or grazing. The Survey Establishes Game Refuges: Due largely to the efforts of the American Game Protective Association, a bill was introduced in Congress in 1921 that authorized the Survey to purchase and administer certain remaining areas of marsh lands that were used as breeding areas. The bill failed of passage but a similar proposal was included in the Migratory Bird Conservation Act,18 already referred to, which gave somewhat more extensive powers to the Survey than did the 1921 bill. It set up an ex-ofricio commission known as the Migra- tory Bird Commission 19 to approve the areas before pur- chase but the Secretary of Agriculture through the Survey was to do the actual work involved in the purchase and was to administer the land afterwards. Nor was the work limited to the acquisition of marsh lands but went a step fur- 18 Act of Feb. 18, 1929, 45 Stat. L. 1222. 19 Consisting of the Secretaries of Agriculture, Commerce, Interior, two members of the House, and two members of the Senate. 88 PROBLEMS IN WILD LIFE CONSERVATION ther and authorized the purchase of any land which was or could be made a suitable breeding place for migratory birds. In the interval between the passage of the 1929 act and the proposed act of 1921, there were a number of bills enacted into law setting aside specific areas as refuges, such as the Upper Mississippi Wild Life and Fish Refuge Act of Besides these measures to conserve the remaining bird life the Survey began here and there to undertake studies in the breeding and domestication of animals. Due to the urgent requests of the reindeer herders in Alaska,21 the Survey established an experimental laboratory in connec- tion with the Territorial Agricultural College and School of Mines to study herd management of those animals. The decreasing number of fur-bearing animals led to higher prices in the market, which in turn led to more ex- tensive trapping. The total extinction of certain species was in sight with the resulting destruction of the fur trade. Experiments have been going on for some time in Canada and Alaska in the raising of fur-bearing animals in captivity with considerable success. Finally, in 1912 the Survey un- dertook research in the breeding of fur-bearing animals and the management of fur farms. At first the work was exclusively with foxes but in time it broadened out to in- clude muskrat, martins, rabbits, and other types of fur animals. Looking back over the development of the Survey's activities four phases of policy are evident. First, there was the emphasis upon economic ornithology for which 20 Act of June 7, 1924, 43 Stat. L. 650. The work of purchase and control of these areas has also passed to the Commission since 1929. 21 Reindeer had been originally introduced into Alaska by the Bureau of Education in an effort to help the natives. In more recent years the industry has passed into the hands of the whites. BUREAU OF THE BIOLOGICAL SURVEY 89 purpose the Survey was originally organized; second, in the period 1886-1906 emphasis upon scientific studies; third, the partial return to economic ornithology; and, finally, since 1920 the emphasis upon the protection and active pro- motion of desirable species of birds and mammals in addi- tion to the control of the undesirable species. The purely scientific studies are still carried on and, in large measure, form the basis of the practical work but in proportion to what might be called the economic activities they have be- come progressively of less importance in the annual appro- priation. One cannot but be impressed with the fact that during most of its history, the Survey has not been particularly aggressive in undertaking wild life conservation measures. The initiative for new developments seems to have come mainly from outside groups. This state of affairs has re- sulted because of the lack of a clear definition of the Survey's functions. Fortunately, in recent years with the develop- ment of a consensus of opinion that the chief function of the Survey is to act as guardian of the wild-life resources of the nation, more progressive and forward-looking policies can be expected. The Chiefs of the Biological Survey: Dr. Merriam was succeeded as chief of the Survey by Henry W. Henshaw in 1910. Henshaw was largely a self -trained biologist. As a young man he joined the Wheeler Survey in 1872 in the capacity of naturalist. During the next few years he was either engaged in the field with that Survey or in writing up the results of its explorations. In 1879 he became a member of the staff of the Bureau of Ethnology, on which he remained until 1893 largely in an administrative capac- ity. In the ten years following he lived in the Hawaiian Islands. Then returning to the United States he became administrative biologist in the Biological Survey and finally, po PROBLEMS IN WILD LIFE CONSERVATION in 1910, chief. His appointment, coming shortly after the House investigation of the Survey's work, was motivated in part by the desire to have a " practical " biologist at the head of the Survey. In 1916 Henshaw retired 22 and was followed by Dr. Ed- ward W. Nelson, long a member of the Survey's staff. Dr. Nelson had graduated from the Cook County Normal School in 1875 and shortly after went to Alaska where he engaged in various scientific explorations during 1877-81 including the cruise of the United States cutter Corwin in 1881. In 1890 he joined the Biological Survey and rose through the various ranks until he became assistant chief in 1914 and finally chief in 1916. After eleven years of service in that capacity he was retired in 1927 after reaching the age limit.23 When Dr. Nelson retired the Secretary of Agriculture, Mr. Jardine, went outside the Survey ranks to pick the new chief. The explanation for this action seems to lie in the fact that Dr. Nelson and certain of his staff in sponsoring a bill that provided for the establishment of federal public shooting grounds incurred the wrath of the conservation group. The chief argument of Dr. William Hornaday, the leader of this group, was that the primary function of the Biological Survey was to protect wild life, not to provide more opportunities for killing it.24 The dispute had become so heated that apparently Secre- tary Jardine decided to bring in a man not involved in it in any way. His choice was Paul G. Redington, an assistant 23 Mr. Henshaw spent the last years of his life in St. Elizabeth's Hospital, Washington, D. C, dying in 1929. 23 See article by Macmahon, Arthur, " Bureau Chiefs in the National Administration," American Political Science Review, vol. 20, p. 559; also vol. 23, p. 394. 24 Hornaday, William, Thirty Years War for Wild Life, p. 123. BUREAU OF THE BIOLOGICAL SURVEY gi chief in the Forest Service. Mr. Redington, a graduate of the Yale Forestry School, had had long years of experience in forestry work. It was believed that this experience would especially fit him to head the Survey because of the close connection between wild-life conservation and forestry. After a comparatively brief term of six years, Mr. Red- ington was returned at his own request to the Forest Service. He was succeeded by Jay Darling whose famous cartoons have, in good measure, popularized the wild life conserva- tion movement. Mr. Darling, who had long been promi- nent in wild-life work in Iowa, had more recently served as a member of the President's Committee on Wild Life Restoration. The conservationists have the feeling that here at last is a man who will not err on the side of lax enforce- ment of the game laws. Administrative Organisation of the Survey: The Bureau of the Biological Survey constitutes one of the fifteen bureaus that go to make up the Department of Agriculture. Organized under the Chief of the Bureau who is respon- sible to the Secretary of Agriculture, the Survey's activities are divided among a number of divisions and independent sections. The staff functions are divided into two groups, the busi- ness operations which are placed together in the Division of Administration, and those activities having to do with public relations which are handled through the Division of Public Relations. The line functions, constituting those activities which the Bureau was organized to perform, are carried on by six divisions and one independent project, namely, the Divisions of Biological Investigations, Food Habits Research, Fur Resources, Game Management, Land Acquisition, Migratory Waterfowl, and the independent project on Disease Investigation. 92 PROBLEMS IN WILD LIFE CONSERVATION Division of Biological Investigations: The work of the Survey might be said to be of three types, investigation, control, and promotion. Three of the line divisions are en- gaged primarily in the first of these, investigation. The Division of Biological Investigations is the oldest, dating back to the original establishment of the Survey in 1885. The Division was originally built around the idea of ex- ploring the country biologically, that is, in making a bio- logical survey. It will be recalled that between 1886-1906 this constituted the chief work of the Bureau, and even today, although occupying a relatively less important posi- tion in the Bureau's program, is still an undertaking of the first magnitude. At the present time four types of research are being car- ried on by this Division : first, on bird migrations and water- fowl distribution ; second, on the life habits of elk and large game animals; third, on the breeding and management of reindeer, caribou, and musk-ox in Alaska; and fourth, on the relation of wild life to forestry. Migratory bird studies are carried on by trapping migratory birds alive and mark- ing them with metal bands. The bands, numbered consecu- tively, are provided by the Division although the actual work is done by private individuals under license from the Survey as well as by the field men of the Division. Persons taking the birds at a later date are requested to notify the Survey of the number found on the band and the locality where captured. A check upon the locality where the bird was first banded and the locality where later captured indi- cate direction and distance of migration. In an effort to determine the approximate number of waterfowl in various parts of the United States upon which to base the statutory bag limit under the Migratory Bird Treaty Act,25 a waterfowl distribution study was begun in 25 40 Stat. L. 755. The waterfowl distribution study is sometimes ironically referred to as the " duck census." BUREAU OF THE BIOLOGICAL SURVEY 93 1927. The personnel of the Forest, Lighthouse, and Coast Guard services were enlisted in the work through their re- spective chiefs in Washington, as were numerous private individuals located in various parts of the United States. The results were not entirely satisfactory because, as might be expected, the estimates of the amateur investigators varied greatly. Nevertheless in the course of two or three years, the Division was able to reach the conclusion that waterfowl as a whole were in a period of serious decline. As a result, the open season on certain species found most seriously affected was shortened to one month in I93I.26 The distribution studies are still being carried on but the estimates are being made entirely by Survey men. Their reports showed that there was some improvement in the waterfowl situation in 1932 due to the short season of the previous year, consequently it was lengthened to two months. The last two years (1933-34) with drought con- ditions existing in wide areas in the Middle West have again played havoc with the waterfowl and at the present time the situation is a very serious one.27 . The Mammal Section is engaged chiefly in investigations regarding life habits of elk and other big game at the Jack- son, Wyoming field station and in identifying and classi- fying specimens at the Museum of Natural History in Washington, D. C. A report summarizing six years of research on elk was prepared and issued by the Survey in 1933. The impor- tance that life histories have as a basic study cannot be overemphasized. It can be readily seen that the only way of determining whether a certain species of wild life is beneficial or harmful to mankind is through a study of its life history. 26 Report of the Chief, Biological Survey (1933), p. I. 27 Report of the Chief, Biological Survey (1933), p. 2. 94 PROBLEMS IN WILD LIFE CONSERVATION Research in the breeding and management of reindeer, caribou, and musk-oxen in Alaska is carried on through a field station at the Territorial Agricultural College and School of Mines and at various scattered field stations. The chief problem in this field is to increase the weight of the reindeer so as to make them more valuable commercially. Considerable success has been achieved in solving the prob- lem through cross breeding of reindeer and caribou. The McSweeney-McNary Act of 1928 28 authorized the Secretary of Agriculture to conduct an investigation to de- termine the best methods of managing the national forests. As it would be supposed, most of the work undertaken in accordance with the provisions of the Act is being carried on by the Forest Service itself, but the Biological Survey was asked to cooperate in the study of the relation of wild life to forestry. The major portion of that study is being carried on by the Division of Biological Investigations. To insure unity of effort between the Forest Service and the Survey, regional conferences have been held from time to time, a good example of which would be the conference held at the Intermountain Forest and Range Experimental Station, Ephraim, Utah in August 1931. At this confer- ence the men of both services engaged in this study in the mountain states met and talked over their common problems. The title of the Division, Biological Investigations, is the best summary of its work in general. Not only does it per- form biological work for the other divisions of the Bureau but frequently its personnel is temporarily assigned to aid state conservation departments that are in need of such experts.29 Quarterly reports are submitted by each major 28 45 stat. L. 699. 219 An example is found in the request of the Virginia Department of Conservation for aid in an investigation of deer and fur-bearing animals in the lowlands of the state made during the latter part of December 1931. BUREAU OF THE BIOLOGICAL SURVEY 95 investigator telling in narrative form of the progress of the work entrusted to him. Division of Food Habits: The Division of Food Habits Research is a straddle between biological investigation and control of certain species of birds found undesirable. The biological investigation side includes stomach analysis work at the special laboratory for that purpose in Denver,30 the survey of proposed sites of refuges for migratory birds, and the study of the food habits of certain birds and mam- mals in relation to forestry under the McSweeney-McNary Act.31 Although this work is not a duplication of that car- ried on by the Division of Biological Investigations, it is in a sense a continuance of the activities of that Division. Control work follows when the study of the food habits of birds show them to be destructive to agriculture. During 1932, for example, such studies were made in California of the damage to rice by blackbirds and to fruits and vege- tables by linnets and larks. Control methods were experi- mented with and those finally applied were successful in materially reducing the damage. The question naturally arises whether this control work in regard to harmful species of birds is not much the same as that carried on by the Division of Game Management. The answer seems to be that it is, although it is possible that more efficient results are obtained by placing birds apart under this Division than by combining them with predatory animals and rodents. Division of Fur Resources: The Division of Fur Re- sources like the two already discussed is engaged in bio- 30 The stomach examination of numerous birds and mammals proved false many common tales regarding their food habits. For example, stomach analysis of foxes taken in Virginia did not bear out the hunters' contention that they destroy many quail but indicated instead a diet chiefly of rabbit. Report of the Chief, Biological Survey (1932), p. 7. *i 45 Stat. L. 699. 96 PROBLEMS IN WILD LIFE CONSERVATION logical investigation, but with this important distinction, it is concerned not with wild animals at large but with the breeding and management of animals in captivity. Its per- sonnel is composed not of biologists but of men trained in animal husbandry. Up to the present time its work has been confined to experiments with fur-bearing animals although it presents a nucleus around which could be built a division devoted to the study of all species of animals that might profitably be raised in captivity. Roughly, the Division's work may be said to be the study of the nutrition, embryology, and genetics of fur-bearing animals. As yet, its field work has been limited to two cooperative stations, one at Fontana, California, for the study of rabbits and one at Church Creek, Maryland, for muskrats, besides the United States Fur Animals Experi- mental Station at Saratoga Springs, New York for a variety of other species. The independent project for the study of animal diseases was formerly part of this Division and still draws its budget allowance from the fur project although it is now respon- sible directly to the Chief of the Bureau. The work is financed on a cooperative basis by the University of Minne- sota with the aid of certain other universities. Division of Game Management: This Division, estab- lished as a result of the reorganization of July 2, 1934, combined in one unit the work formerly carried on by the Division of Predatory Animal and Rodent Control and the Division of Game and Bird Conservation. The activities of the Division are of three types: control of predatory ani- mals, management of refuges, and enforcement of the game laws. For purposes of administration the country has been divided into eight regions and at the head of each has been placed a regional director responsible for the work in his respective area. In effect, this reorganization decentralized BUREAU OF THE BIOLOGICAL SURVEY 97 the field organization and centralized the organization at headquarters at Washington. Control of Predatory Animals and Rodents: It is a theory, advanced by some naturalists, that nature untouched by man will itself work out a balance between the various species of wild life, using one species to check overproduc- tion in another. Whether in the long run this is true or not, and recent experiences of the Division would seem to cast much doubt upon its validity, man from the economic point of view cannot always afford to wait for such a bal- ance to adjust itself. The Division of Game Management operating upon a realistic basis has set out to eradicate predatory animals and rodents in those areas where it is economically profitable to do so. It is not attempting total eradication of whole species, but only to eradicate them in such areas where they are doing sufficient damage to make the necessary expendi- tures for eradication profitable. Whether the Survey should have undertaken this type of work at all has long been a moot question among conser- vationists. It is a question difficult to answer, and only time can determine the wisdom of the policy. It will be recalled32 that the state legislatures at first tried to subsidize the killing of predatory animals through a bounty system. It failed to be effective because of the opportunities for fraud inherent in the system. In some cases breeding areas were deliberately maintained by profes- sional hunters; in other cases skins taken in one state were shipped to another paying a higher bounty. Fundamentally, the system was wrong because the chief aim of the hunters was not to eradicate the evil but to continue it so as to have a source of financial return. 32 See supra. 98 PROBLEMS IN WILD LIFE CONSERVATION The Survey uses picked men as salaried hunters working under the supervision of a state leader who, in turn, is re- sponsible to one of the eight regional directors, each one having direction of the work in several states. When first established an attempt was made to keep predatory animal separate from rodent control work with separate leaders in each locality. In more recent years the policy has been adopted of combining the work in a state under a single individual with the title of dual leader. The new system has not been put into effect throughout the organization but it is in operation today in the majority of the states. It is the duty of the regional directors to keep in touch with the leaders in each state, aiding them with advice and in general supervising their work to see that instructions from headquarters are properly obeyed. They also act as contact agents between the Survey and those agencies which are cooperating with it in providing funds for control work. The hunters and rodent-control leaders, the state leaders, and the regional directors themselves, are required to sub- mit a brief weekly itinerary report showing their day-to-day activities. Quarterly and annual reports in greater detail are made by the regional directors and state leaders, not upon form blanks but in running narrative style. These reports,33 together with the visits of the Division Chief, constitute the major check upon the field activities. The policies of the Division have been formulated by a series of general con- ferences with the field staff, the last of which was held at Denver in April 1931 and by a conference of the regional directors, the last of which was held in Washington in August 1934. Two separate projects not under the general field organ- ization are the Control Methods Research Laboratory located at the Custom House, Denver, and the Bait Processing Plant 33 Special reports on a number of subjects required in addition. BUREAU OF THE BIOLOGICAL SURVEY 99 at Pocatello, Idaho. The laboratory seeks to develop more efficient methods of control chiefly through the discovery of new types of poisons while the Idaho plant makes the poison bait which is used by the Survey men in the field. In some instances as a matter of courtesy, bait is processed without charge for state conservation departments which furnish the necessary materials. There are four field investigators attached to the labora- tory staff who try out new poisons under the actual con- ditions obtained in the field, and who study the natural habits of predatory animals and rodents so as to determine the type of poison bait that will be most effective. A great part of the work is financed by cooperative funds obtained partly from the federal government and partly from other sources. During the fiscal year 1932 the federal funds expended by the Division for predatory animal and rodent control totalled $596,606 while at the same time 36 co- operating states spent $448,251, and in addition counties, livestock associations, and individuals contributed practically half a million dollars.34 Thus the cooperative agencies dur- ing that year nearly doubled the contribution of the federal government for control work, although since that time their contributions have fallen off considerably. The Survey when undertaking work to be financed co- operatively prefers to enter into a formal written agreement in which the rights and duties of each party are clearly stated. The control operations call for a technique of a high order, and therefore in each instance the Survey has insisted that the actual direction of the work remain in the hands of trained Survey personnel. The use of such agreements is not limited to agencies outside of the federal government but is also used between departments. Thus the Survey has written agreements re- 34 Report of the Chief (1932), op. cit., p. 10. I0o PROBLEMS IN WILD LIFE CONSERVATION garding predatory animal and rodent control work with the Forest Service, National Parks Service, the Bureau of In- dian Affairs, and the Office of the General Extension Service. Enforcement of the Federal Game Laws: The regulatory work of the Division of Game Management is founded upon the Lacy Act of ipoo,35 the Migratory Bird Treaty Act of 19 1 8,36 and various laws affecting wild-life reservations. To enforce these laws the Survey has a staff of 25 United States game protectors scattered over the country in as many districts aided by temporary assistants on a per-diem basis known as United States deputy game wardens. The President upon recommendation of the Secretary of Agriculture is authorized, by the terms of the Migratory Bird Treaty Act, to issue regulations which have the force of law, fixing the length of the open season and the bag limit for migratory game birds. These regulations are drafted annually for the Secretary by the Biological Survey, advised by a representative laymen's committee chosen by the survey from various parts of the country. In a certain sense the intent and purpose of the federal game laws is to secure a degree of uniformity among the states and to aid them by making violations of state game laws more difficult. With such a small number of wardens each covering a large territory, efficient enforcement could only be obtained through a policy of close cooperation with the state conservation departments. To such cooperation is due in large measures the success the Survey has had to date. One form of cooperation is the deputizing of wardens of the respective services, federal and state, on the opposite 35 31 Stat. L. 187 as amended by Act of March 1909, 35 Stat. L. 1137. *